Mkhwebane launches a broadside at the three judges who dismissed her bid to interdict parliament

Public protector Busisiwe Mkhwebane has launched an extraordinary attack on the three judges who dismissed her legal bid to interdict parliament from proceeding with her impeachment inquiry.

Judge Vincent Saldanha, on behalf of the full bench, ruled earlier this month that Mkhwebane had failed to make a proper case for why National Assembly speaker Thandi Modise should be interdicted from pursuing the 17-step process that it developed to deal with the impeachment of a chapter 9 institution head.

Mkhwebane wants that process stalled until she has challenged the constitutionality of the rules that will govern it next year.

The public protector’s lawyers now insist the full bench “clearly prejudged” key issues raised in her interdict application “even before any argument was listened to”. They say this “amounts to a further gross misdirection” and an “impermissible exercise” of the court’s powers.

This accusation suggests that the judges who presided over the case did not apply open minds to Mkhwebane’s argument and failed to act fairly and impartially, an immensely serious claim to make against any judicial officer.

Mkhwebane also reiterated her demand that Modise and the entire DA should recuse themselves from her impeachment inquiry process, as she fights to appeal against a ruling that enables that inquiry to go ahead.

As before, Mkhwebane maintains that Modise is biased against her and conflicted because the speaker successfully challenged the public protector’s order that parliament force President Cyril Ramaphosa to disclose the identities of his CR17 campaign funders.

Mkhwebane is now seeking to appeal against the invalidation of her CR17 report in the Constitutional Court, and clearly believes this unresolved litigation should require Modise to step back from involvement in her impeachment inquiry, an argument that Modise’s lawyers have dismissed as baseless.

She has also accused Modise of acting with an “ulterior purpose” by approving a motion for the public protector to face an impeachment inquiry, which was lodged by DA chief whip Natasha Mazzone.

That motion is based largely on devastating judgments against Mkhwebane in the SA Reserve Bank and Estina dairy project cases. In both those cases, Mkhwebane was ordered to personally pay a portion of legal costs incurred in  the successful challenges to her reports because of the bad faith and apparent bias she had demonstrated in both these investigations and her efforts to defend them.

The DA contends that there is ample evidence that Mkhwebane is guilty of misconduct and incompetent, but she insists that the rulings against her are “opinions” and cannot be used as a basis for her removal.

While Mkhwebane maintains that there is a slim chance that the DA’s motion for her to face an inquiry into her fitness to hold office will result in her being impeached, her lawyers argue that she is seeking to halt an inquiry process that she regards as unconstitutional and vindictive.

The public protector maintains that Modise should be ordered  to pay 20% of her legal costs in challenging the rules that will govern her impeachment inquiry process, because, among other reasons, the speaker refused to stop that process while Mkhwebane challenged it in court.

Mkhwebane’s lawyers continue to argue that her interdict application should be dealt with in the same way as public enterprises minister Pravin Gordhan’s successful court bid to halt the disciplinary action she ordered Ramaphosa to carry out against him in her Sars “rogue unit” report, while he challenged that report in court.

But while Gordhan was granted the interdict he sought the high court rejected Mkhwebane’s argument that she would suffer “irreparable harm” if the inquiry into her fitness was not halted, pending her legal challenge to its constitutionality.

“A court should not lightly interfere with such processes unless an applicant has demonstrated exceptional circumstances, which in my view [Mkhwebane]  has failed to do,” Saldanha ruled.

Mkhwebane’s lawyers, however, insist that there is “no rational or constitutionally acceptable basis” to treat her differently from Gordhan.

Correction: October 28 2020

In an earlier version of this story, we incorrectly abbreviated the SA Reserve Bank to Sars.