The Constitutional Court has dismissed suspended public protector Busisiwe Mkhwebane’s rescission application to overturn its finding that the impeachment inquiry against her is lawful.
The court found that her application “constitutes an abuse of the process of court” and ordered Mkhwebane to personally foot the legal costs incurred in the Reserve Bank case.
Reads the judgment: “The Constitutional Court has considered the application for rescission. It has concluded that the application should be dismissed as no case has been made out for rescission. The applicant ought to pay costs in her personal capacity, as this application constitutes an abuse of the process of court.”
Speaker of the National Assembly Nosiviwe Mapisa-Nqakula said she welcomes the court ruling. “[Parliament agrees] with the court’s decision to order the public protector to pay costs in her personal capacity as the application constituted an abuse of process of court.”
Mkhwebane, who was challenging the court’s decision to dismiss her last rescission application to halt parliamentary proceedings into her fitness to hold office, was also challenging her suspension.
The embattled public protector said in June that she would challenge President Cyril Ramaphosa’s decision to suspend her a day before the high court delivered a ruling on her rescission application. She raised concerns that the president might have known that the court would dismiss her bid to block the inquiry.
In a statement at the time, Mkhwebane said Ramaphosa pre-empted the court’s judgment which was to decide on the “legal entitlement of president Ramaphosa to suspend [her]”.
“Be that as it may, on 10 June 2022 the high court indeed subsequently confirmed that president Ramaphosa may do what he did [previously]. In that sense, the judgment had been rendered academic by the conduct of the president,” said Mkhwebane.
“It seems clear that the judgment is largely and focused on the technicality that the application is for an interim interdict and the special requirements of such interim interdicts rather than the merits of whether 1) this particular president is personally legally entitled to suspend a person who is investigating him for serious and impeachable offences; and 2) whether the provisions of the empowering section 194[3] [a] of the constitution had been triggered [i.e. whether the removal proceedings had started] by 17 March 2022 or even yesterday when the suspension occurred.
“This is despite the glaring errors in [the] judgment which dismisses an application to strike out which was specifically not pursued but grants personal costs orders which the Speaker [of the National Assembly] and the president did not seek and only the DA, which is the complaint in the impeachment process, asked for based on its obvious political agenda. In due course, these material errors and deficiencies will be separately attended to.
“Therefore, it seems appropriate to approach the judge president to urgently set down part B of the application so that those issues can be decided outside of the technical context of the requirements of interdicts and before the commencement of the purported impeachment proceedings.”
Judge Nathan Erasmus, who delivered the ruling dismissing Mkhwebane’s application, said the court believed that a “strong signal needs to be sent” that the Constitutional Court’s decision needed to be respected and cannot be circumvented by rescission applications.
Meanwhile, Mkhwebane is currently being scrutinised at the Section 194 Committee inquiry. The committee has heard damning testimonies about her conduct from over 12 witnesses.
Mapisa-Nqakula said once the committee has examined all witnesses, it will then determine whether Mkhwebane is fit to hold office. However, the embattled public protector’s tenure in office is hanging by a thread.
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