By Lehlohonolo Lehana.
Public Protector Busisiwe Mkhwebane’s ongoing legal battle against President Cyril Ramaphosa and Parliament has been described as a Stalingrad defence against her impeachment.
The Western Cape High Court is hearing her case to interdict Parliament’s Section 194 committee from continuing with her impeachment proceedings and to prevent Ramaphosa from suspending her.
Parliament’s lawyer, advocate Andrew Breitenbach SC who addressed the court on Thursday, said Judge Vincent Saldanha ruled against Mkhwebane when she tried to stop the parliamentary process.
He said after she failed, she made another attempt to stall her impeachment and “we’re in the same boat as we were before”.
Breitenbach questioned whether it was proper for a full Bench to consider the same question that was previously ruled on.
He told the court that Parliament’s Section 194 committee had the power to convene whenever it wanted to and that the investigation by Chief Justice Raymond Zondo into a leaked SMS was not enough reason to stop the inquiry from proceeding.
Breitenbach said this had nothing to do with the Section 194 committee’s work that must decide whether Mkhwebane was guilty of misconduct and incompetent.
In the SMS sent to Breitenbach, legal consultant Ismail Abramjee claimed that he had it “on good authority” that the Constitutional Court had decided to dismiss Mkhwebane’s rescission application.
Mkhwebane had approached the ConCourt with a rescission application in February, seeking an order for the apex court to reverse its February ruling.
Abramjee also claimed in the message that the judgment would be delivered on 29 April, but the ruling only came a week later on 6 May.
Advocate Karrisha Pillay, representing the office of the Presidency addressed the argument that Ramaphosa is conflicted and cannot suspend Mkhwebane.
Mkhwebane said in her papers that Ramaphosa is conflicted in her office’s ongoing investigations.
Due to these ongoing probes, the public protector said she would not have an issue if Ramaphosa delegated any other official in the Presidency to suspend her, as long as it’s not him personally issuing the suspension.
The investigations are reportedly related to the controversial South African Air Force flight to Zimbabwe in 2020 on which senior ANC officials received a lift, allegations of judicial capture and claims that Ramaphosa knew about the abuse of state funds during the ANC’s elective conferences.
Pillay told the court that the extent to which Ramaphosa must withdraw from the process must be thoroughly ventilated.
She argued that Mkhwebane could be lawfully suspended pending her impeachment process.
Pillay said that the president “was tasked in his official capacity to take the decision”.
“In relation to the investigations, they were against the president in his official capacity as president or deputy president, “she said.
“If the case is one of a conflict of interest, it’s going to have to be the threshold of Section 96(2)(b) that has to be met.
“My submission [to this court] on all four of those instance contrary to what the public protector says is that there is no clash between official duties versus personal private interests, Pillay said.