Public Protector's impeachment continues as MPs not swayed by latest Stalingrad tactics

Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Jan Gerber/News24
  • The Section 194 Committee will continue with its work to impeach Public Protector Busisiwe Mkhwebane.
  • After hearing legal advice, the committee saw nothing preventing it from forging ahead, despite Mkhwebane's latest legal manoeuvres.
  • The committee also adopted a programme that will see it have hearings in July and complete its work by the end of September.

Public Protector Busisiwe Mkhwebane's Stalingrad tactics to prevent her impeachment did not have an impact on Parliament - the Section 194 Committee decided to forge ahead, despite her latest legal manoeuvres.

The committee - named after the section of the Constitution dealing with the removal of the head of Chapter 9 institutions - met on Wednesday to discuss its way forward and adopt a programme.

Last week, the Constitutional Court dismissed Mkhwebane's application to have the decision, which allowed the parliamentary process to continue, rescinded.

In what appears to be a constitutional first, she now wants this decision not to rescind the previous ruling rescinded.

Mkhwebane also brought an application to the Western Cape High Court to interdict Parliament from doing its work and prevent President Cyril Ramaphosa from suspending her, pending the original rescission application.

The second part to the High Court is an application for the review of the Speaker's letter to Ramaphosa, informing him the process is underway.

On Monday, Mkhwebane's attorney sent a letter to Parliament in which they stated that at the Section 194 Committee's meeting on 29 March it took an "unreasonable stance" to continue with its work and her interdict application became "necessary and inevitable".

She said the "first issue of consideration by the committee should therefore be to revisit its earlier decision" to forge ahead with its inquiry, despite her rescission application and the second part of her High Court application.

READ | Mkhwebane hits out in full-throttled attack on ConCourt, charges there is grand plot against her

Two weeks ago, the interdict application hit a snag after it emerged that Ismail Abramjee, a self-described "qualified and respected legal analyst and a commentator", stated in an unsolicited SMS to Parliament's counsel, advocate Andrew Breitenbach SC, he had it "on very good authority that the ConCourt has declined to hear the Public Protector's rescission application".

Mkhwebane laid a complaint against Abramjee with the police.    

The Office of the Chief Justice is also investigating whether there was any impropriety and according to Mkhwebane, her deputy, Kholeka Gcaleka, was also investigating.  

She insisted the interdict application was postponed until these investigations were concluded.

At Wednesday's meeting, parliamentary legal advisor Siviwe Njikela advised the committee nothing was preventing it from continuing with its work.

The ANC MPs on the committee and the DA's Leon Schreiber and GOOD's Brett Herron agreed and decided to forge ahead.

Mkhwebane could once again bank on the support of UDM leader Bantu Holomisa and ATM leader Vuyolwethu Zungula.

Holomisa raised the matter of the investigations into the "leakage" - the SMS sent by Abramjee.

ANC deputy chief whip Dorris Dlakude said that was not a matter for the committee.

Herron said there seemed to be an attempt to conflate the SMS with the committee's work, and it would "contaminate" the committee's proceedings.

"The misconduct with the SMS is irrelevant to our proceedings," he added.

Several ANC MPs agreed with him.

Zungula said it could not be "swept under the carpet" and they could not pre-empt what the findings could be.

He also asked whether the matter was not sub judice because of Mkhwebane's court applications.

After he spoke, committee chairperson Qubudile Dyantyi warned members not to impugn judges.

EXPLAINER | An SMS, a judge on a panel - what to know about Public Protector's battle with ConCourt

Schreiber said a motion adopted by the National Assembly stood until it or a court overturned it.

Referring to Mkhwebane's application to rescind the Constitutional Court's dismissal of her original rescission application, Schreiber said: "We're going down a rabbit hole here.

"It becomes a farce."

Njikela said the sub judice rule was not relevant.

"We have always maintained from the beginning the work of Parliament cannot be trumped by what is before court."

He described the rescission application as "surprising" and would not comment on its merits.

The committee also adopted a programme.

It will start with hearings on 11 July. Four days are set aside for Mkhwebane's appearance before the committee from 26 to 29 July.

The committee expects to adopt its report by the end of September.

Welcoming the programme, Dlakude said it gave the committee enough time to do its work.

"As a committee, we are on a fact-finding mission. We don't have a preconceived outcome," she added.

Mkhwebane's term of office ends in October 2023.

Her office responded in a statement released on Wednesday evening, noting the committee's decision "with regret". 

"The Public Protector is on record that any lawful enquiry should proceed as a soon as possible. She is confident that no legitimate enquiry will find her guilty of the charges brought by the Democratic Alliance," Public Protector spokesperson Oupa Segalwe said in a statement.

"However, the decision to start an enquiry in the present atmosphere, which is littered with allegations of conflicts of interest, illegality and even alleged corruption and other criminal conduct, is totally unacceptable.

"The outcome of Chief Justice Raymond Zondo's investigation into allegations of corruption implicating Mr Ismail Abramjee and one or more persons within the Constitutional Court, which will have a huge bearing on all the related processes, should be awaited by all reasonable people and institutions.

"No legitimate court or parliamentary step ought to be taken until the outcome of the pending investigation is known.

"The Public Protector will therefore leave no stone unturned in the quest for justice, the vindication of the independence of the judiciary and the rule of law. It is her duty to protect the public from alleged wrongdoing and/or criminality by any person or public institution even at the highest level of the state."

This report has been updated to include the Public Protector's statement.

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