There was “no conceivable scenario” in which the impeachment process against Busisiwe Mkhwebane was untainted, the public protector said in an affidavit to the Western Cape High Court on Monday.
Mkhwebane’s affidavit was filed in support of an application to put additional evidence before the court, which is due this week to hear an urgent application to put a halt to the impeachment process in parliament and prevent her possible suspension by President Cyril Ramaphosa.
The affidavit sets out what has happened since an SMS from Ismail Abramjee was sent to counsel for the speaker of parliament, Andrew Breitenbach SC.
The SMS said: “Hello Adv Breytenbach [sic], Re: The public protector case tomorrow. I have it on very good authority that the ConCourt has declined to hear the public protector’s rescission application. The decision will be made known some time this coming week but not later than Friday. I thought I’d share this with you on a strictly confidential basis. Thanks.”
The SMS related to an application by Mkhwebane to the Constitutional Court, then pending, to rescind its February judgment that cleared the way for an impeachment process to get under way. Breitenbach was counsel in the Western Cape high court case, which was a separate but related case for an interim interdict to prevent the impeachment process, pending the outcome of the rescission application.
After the parties wrote to the apex court about the SMS, it said it would investigate the allegation and the outcome of the rescission application would “be communicated to the parties when the court has finalised its processes and made its decision”.
On May 6 the Constitutional Court dismissed the rescission application. Last week parliament decided to press ahead with its impeachment process and the president gave Mkhwebane a deadline to tell him why he should not suspend her. A letter on Thursday from the president’s lawyers said May 20, but after discussion between the legal teams, the deadline is now May 26.
In her affidavit on Monday, Mkhwebane said other than the fact that the court’s order was “one week later than foretold, the order handed down on May 6 2022 confirmed exactly Mr Abramjee’s illegal SMS”. He knew what the decision was and, “more disturbingly”, he knew the decision would be given without the court issuing directions, asking for further affidavits or holding a hearing.
“This may be a very strange coincidence, which is highly unlikely, or confirmation of a very serious and unprecedented state of affairs and crisis of confidence in the judiciary,” she said.
Mkhwebane said the “only objective pursued by Mr Abramjee and his accomplice(s) can only have been to ensure the impeachment process must commence or proceed and/or that I would be speedily suspended”. There was “no conceivable scenario in which the current impeachment process is legitimate and untainted”, she said.
Mkhwebane has since applied to the Constitutional Court for its refusal to rescind to itself be rescinded — on the basis that the investigation into the potential leak from the Constitutional Court has yet to be completed.
In her application to the Western Cape court, Mkhwebane said it was a crucial part of her case that the impeachment process and possible suspension could not proceed until the rescission application has been finalised.
“This postulates the lawful finalisation of the rescission application, not an outcome mired in controversy, criminality and pending litigation,” she said.
She said that to argue — “as some of the respondents do” — that there has now been an outcome in the rescission application “despite the latest developments, is to bury their heads in the sand and pure fantasy or make believe”.
She also sought to counter the argument that the new developments had “no relationship with the relief sought against the president. Nothing could be further from the truth.”
The interdict sought against Ramaphosa was “always directly linked” to the outcome of the rescission application, said Mkhwebane. It was a letter from the speaker of parliament to the president saying the impeachment process would be getting under way that triggered Ramaphosa’s step to consider suspending her, she said.
The committee was supposed to suspend its process pending the rescission application, she said.
“Had it done so, there would have been no threat or talk of my suspension. The two things are inextricably linked and connected.”
Mkhwebane also hit back at the DA and the “chattering classes” who would accuse her of “Stalingrad” tactics if she sought to postpone her application.
She said the Stalingrad term was “a new anti-constitutional invention in the South African legal lexicon” intended to disparage and prevent people from “exercising the hard-won rights enshrined in the postapartheid constitution”.
“I hope to get an opportunity one day to expose and correct this injustice too,” she said.
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