Despite the prolonged Section 194 inquiry into her fitness to hold office, suspended public protector Busisiwe Mkhwebane continues to face setbacks.
On Thursday, the high court in Western Cape rejected Mkhwebane’s application to review the Section 194 committee’s decision not to recuse its chairperson Qubudile Dyantyi and fellow MP Kevin Mileham.
Mkhwebane had accused Dyantyi of bias and procedural unfairness, and Mileham of being compromised due to his marriage to fellow MP Natasha Mazzone, who had tabled the motion for the establishment of the impeachment inquiry.
Mkhwebane approached the court in 2022 seeking urgent relief, including a review of the committee’s decision to dismiss her application for the recusal of Dyantyi and Mileham, its decision not to adjourn or continue the inquiry, and its decision not to summon or recall certain witnesses including President Cyril Ramaphosa, whom she wished to call to testify.
Handing down judgment, high court judges Rosheni Allie, Judy Cloete, and Kate Savage emphasized the importance of the separation of powers doctrine and a need for each branch of government to fulfill its constitutional mandate without undue interference.
The court also underscored that section 237 of the constitution requires that all constitutional obligations be performed diligently and without delay, including the National Assembly’s duty to hold the public protector accountable by scrutinizing a motion for her removal in a timely and diligent manner.
Additionally, the court determined that Mkhwebane had failed to demonstrate the presence of serious injustice against her.
It did not find Mkhwebane’s argument convincing, that continuing with the inquiry would cause her significant and irreparable harm.
The court then concluded that it would not be appropriate to conduct a fragmented review of inquiry proceedings unless extraordinary circumstances were established.
“The applicant retains effective remedies which remain available to her once the committee has completed its work,” reads the judgment.
“She has not shown the existence of grave injustice or that any harm which has been suffered by her will be material and irreversible if the committee is permitted to proceed with its task.”
Mkhwebane was not subjected to punitive costs by the court, but she has been ordered to pay legal costs of the defendants.
The Office of the Public Protector did not finance the lawsuit, therefore she will have to pay the costs herself.
As of March 31, the Office of the Public Protector said it could not continue to pay for Mkhwebane’s legal expenses, which amounted to R26-million, leaving her without legal representation during the committee’s proceedings.
Mkhwebane now insists that the government should pay for her legal representation for the duration of the inquiry. However, her term of office comes to an end in October.
It is still not clear when the inquiry will conclude, but it is scheduled to resume on Friday, during which the evidence leaders will present evidence gathered for its review.
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