The parliamentary committee conducting an inquiry into the suitability of public protector Busisiwe Mkhwebane to hold office decided Tuesday to continue its work despite a warning that she may seek an urgent interdict to prevent it.
This was yet another in a string of attempts by Mkhwebane to halt parliament’s impeachment proceedings, which were held up for about seven months last year while she launched a challenge against the rules parliament had adopted for the conduct of the inquiry.
Last month, Mkhwebane also unsuccessfully asked the committee to halt its work, saying she planned to lodge an application to the Constitutional Court for a rescission of its judgment on the legality of the parliamentary process.
Mkhwebane now wants the committee to stop its work pending the outcome of her Constitutional Court application. Parliament intends opposing this application on the grounds that it lacks merit.
Senior parliamentary adviser Siviwe Nijikela told the committee that from his reading of Mkhwebane’s correspondence to parliament she seemed to be saying that she may file an urgent application to interdict the inquiry that the committee intends to pursue if it decides to continue. But there was no interdict application before the court, Nijikela said, and neither would the committee be deliberating on the merits of the rescission application in the Constitutional Court.
Seanego Attorneys said in a letter sent on behalf of Mkhwebane on Monday to committee chair Qubudile Dyantyi that the outcome of Tuesday’s meeting — as to whether the committee would discontinue its work pending the outcome of the rescission application — “will have a significant impact on the next steps by the public protector”.
Most MPs from across the political spectrum agreed the rescission application had no bearing on the committee’s work and that there was no impediment on its proceeding until it was interdicted from doing so by a court. It will take the month from end-March to end-April for the evidence leaders to prepare the case — there are well over 9,000 pages of documentation to examine. They will also have decide on witnesses.
However, the EFF and the African Transformation Movement (ATM) objected, appealing for the committee to stop its work. EFF leader Julius Malema stressed that there was no need for haste. “We must not be seen to be impatient,” he said.
The committee approved the appointment by the state attorney of Nazreen Bawa and Ncumisa Mayosi as evidence leaders of the inquiry.
Bawa previously acted as evidence leader for the Khayelitsha commission of inquiry into allegations of police inefficiency and the breakdown in the relationship between SA Police Service and the Khayelitsha community, as well as for the Mokgoro inquiry of the National Prosecuting Authority into the fitness of advocates Nomgcobo Jiba and Lawrence Sithembiso Mrwebi to hold the office. Mayosi acted as initiator for the SA Rugby Union in a disciplinary hearing. Both advocates have also acted as judges in the Western Cape High Court.
President Cyril Ramaphosa has asked Mkhwebane to provide reasons why he should not suspend her pending the outcome of the parliamentary process, but the lawyer’s letter to Dyantyi said he had agreed to impose a moratorium on the proposed suspension process until the court decides whether he is the lawful suspending authority “in the prevailing circumstances”.
Mkhwebane has written to Ramaphosa saying he is not competent to decide on her suspension as he is conflicted in that he’s been the subject of her investigations.
Mkhwebane has applied to the Constitutional Court for a rescission of its judgment that found that it was lawful for a retired apex court judge — Bess Nkabinde — to head a panel which deliberated on Mkhwebane’s suitability to hold office. The panel found that there was prima facie evidence of her incompetence and misconduct, and recommended that parliament proceed with an inquiry to determine whether she should be removed as public protector.
However, the Constitutional Court found in favour of Mkhwebane in requiring the parliamentary committee inquiry to allow her to have legal representation during its proceedings.
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