If only the public protector’s mulish litigious bent inspired public confidence that advocate Busisiwe Mkhwebane was a champion of democracy. In the latest demand on the Constitutional Court’s precious time, Mkhwebane aims to persuade the bench to review (that is: rescind) a decision not to rescind a previous judgment. It is fast becoming a revolving comedy of purported legal errors, and one with serious implications.
The nub of this increasingly absurd saga is a straightforward question. Is Mkhwebane unfit to hold office due to misconduct or incompetence? The answer is yes or no. Importantly, of course, litigants have the right to appeal. They may try their luck, and quite comfortably when the public foots the bill. In rare instances a court mulcts some litigious mandarin with a personal costs order — think former social development minister and convicted perjurer Bathabile Dlamini — but that is exception not rule.
That SA’s most elevated judges reached a decision in a case, applied their minds to a plea for reconsideration, and then declined it is apparently no hurdle for the determined Mkhwebane to leap. At some stage, following the lauded adage “don’t take no for an answer” swings from tenacity to folly. Whether Mkhwebane has reached that point will be evident from the Constitutional Court's decision-on-the-rescission-of-a-declined-rescission.
It does not take skills of divination or peak legal savvy to tell the odds, strictly in law, are against Mkhwebane. In all probability her latest bid will fail, because rescission opens a narrow crack in the door of a closed case. In SA’s common law, rescission is a two-step test. One, is the applicant’s explanation for an absence or default satisfactory? Two, have they shown reasonable prospects of success in the defence or grounds for opposition?
For all her doggedness Mkhwebane is less champion of democracy and more litigious mimic deploying her own version of the well-trodden Stalingrad tactic to get out of a bind. How striking that both Mkhwebane and the former president who appointed her, Jacob Zuma, are so fond of filing rescission bids in the country’s top court. As the latter recoups on medical parole in Nkandla, the former shows no sign of abandoning her campaign.
Last week the Chapter 194 committee into Mkhwebane’s conduct met to discuss timelines for its investigation. Meanwhile, she is hanging on for dear occupational life until her seven years in office ends in October 2023. The committee heard from legal advisers who have been consistently resolute that its work may proceed no matter the court dramas.
A senior parliamentary legal adviser said of missives from the public protector’s office about various legal steps she has taken: “There is this festival of correspondence. The festival continues.” He stifled a chortle between searching for words to summarise her latest move and finally settled on: “It seeks to rescind the decision not to rescind the decision of the Constitutional Court.” One MP replied: “We’re going down the rabbit hole here. What prevents a third or a fourth or a fifth application for rescission? It becomes a bit of a farce, frankly.”
Were the committee to find Mkhwebane unfit to hold her post, and one shudders to think it might not, she would be the subject of a National Assembly poll. If a two-thirds majority backed the motion, it would pass. By then Mkhwebane would be — at most — mere months shy of the end of her non-renewable term. The committee’s provisional deadline is September 28.
It was clear from a meandering interview with the bumptious Dr JJ Tabane weeks ago that Mkhwebane has no interest in vacating her post early. “What’s the rush?” was her attitude. In its banality it is a staggering take from the head of a Chapter 9 institution so important to constitutional democracy.
The urgency of determining Mkhwebane’s aptitude is seemingly lost on her. And while she may be in no hurry to go, SA is nearing a seven-year itch.
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