Mkhwebane to challenge ConCourt's rejection of her impeachment rescission bid

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Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Jan Gerber/News24
  • The Public Protector is set to challenge the ConCourt's rejection of her impeachment rescission bid.
  • This is revealed in a letter Mkhwebane's legal team sent to the State Attorney on Monday.
  • Mkhwebane's legal team writes the 6 May decision was announced with several factors.

Public Protector advocate Busisiwe Mkhwebane is challenging the Constitutional Court's decision to reject her impeachment rescission bid.

In a five-page letter to the State Attorney - dated 9 May 2022 and seen by News24 - Mkhwebane's legal team indicated it held instructions to challenge and set aside the order "unlawfully and irregularly granted on 6 May 2022 upon various grounds".

This after the apex court, in a short ruling delivered on Friday, said it had elected not to hear her rescission application, News24 reported.

"The court has concluded that the rescission application does not establish any rescindable errors in the judgment. There are also no exceptional circumstances that warrant the rescission of the judgment.

"Therefore, the court has concluded that the application should be dismissed as no case has been made out for rescission. The court has concluded that the application for direct access should be dismissed as no case has been made out for direct access," it ruled.

READ | ConCourt rejects Mkhwebane's impeachment rescission bid, paving way for inquiry into her fitness

In the letter to the State Attorney, Mkhwebane's lawyers wrote that on 6 May 2022, the Constitutional Court announced its decision to dismiss the Public Protector's rescission application without:

- Issuing any directions in terms of Rule 18[4] of the Constitutional Court Rules, as was commonly believed by the parties.     

- Requiring the respondents to file any answering affidavits.  

- Affording the Public Protector the right to a fair and public hearing before an impartial court, as guaranteed in Section 34 of the Constitution

- Awaiting the outcome of the Chief Justice's investigation into the leaking of information by Mr [Ismail] Abramjee.

They said the above was an unsatisfactory state of affairs, which grossly violated the rights of the Public Protector.

"Accordingly, we hold instructions to challenge and set aside the order unlawfully and irregularly granted on 6 May 2022 upon various grounds. All the interested parties, including your client[s], will be duly served," the letter read.

News24 reported a text message had been recently sent by Abramjee to the counsel for Parliament, Andrew Breitenbach.

In the SMS, Abramjee - who describes himself as "a qualified and respected legal analyst and a commentator" - stated he had it "on very good authority that the ConCourt has declined to hear the Public Protector's rescission application". 

Mkhwebane previously stated the message suggested the apex court's decision "was leaked to Mr Abramjee before being made public."

Abramjee, however, said his message to Breitenbach was based on media reports and "my own legal analysis" and not on any "inside information or knowledge" from the apex court, News24 reported.

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