Tuesday, 26 April 2022 14:43

Mkhwebane's bid to halt impeachment process postponed and here is why!

By Lehlohonolo Lehana.

The Western Cape High Court has postponed Public Protector Busisiwe Mkhwebane's application to stop her impeachment.

Judge Nathan Erasmus postponed the matter to 18 and 19 May on Tuesday.

Erasmus, in granting the postponement, said there was still the pending Constitutional Court rescission application by Mkhwebane that could have an impact.

Without giving much detail, Erasmus also noted certain developments as a reason for the postponement.

"We were alerted yesterday [Monday] afternoon to certain unfortunate developments that might impact on the hearing of the matter."

Two independent sources have confirmed that the "unfortunate development" was a text message, sent to counsel for the speaker of parliament, Andrew Breitenbach. The message said the sender had it on good authority that the Constitutional Court would soon, within the week, be refusing to entertain Mkhwebane’s application to rescind its impeachment judgment.

Courts' intended orders are normally confidential until the moment they are delivered. Breitenbach then disclosed the message to the Western Cape High Court judges and counsel for the other parties.

In response to a request for comment, Breitenbach said the bar’s ethical rules did not allow him to comment.   

Mkhwebane faces suspension by the president should her court bid fail.

President Cyril Ramaphosa on 17 March wrote to Mkhwebane asking her to explain why he should not suspend her during the inquiry into her fitness to hold office.

Mkhwebane, however, said Ramaphosa is conflicted because of the Public Protector office's ongoing investigations regarding him.

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.

She filed a court application at the Western Cape High Court in March.

The Public Protector has argued that the impeachment process being conducted by Parliament's Section 194 Committee should not continue while the apex court is still considering her rescission application.

She is also seeking to have the letter sent by National Assembly Speaker Nosiviwe Mapisa-Nqakula to Ramaphosa informing him that the Committee on Section 194 inquiry will be resuming its proceedings, deemed unlawful.

The parliamentary inquiry into the fitness of Mkhwebane to hold office was put on hold pending the judgment of the Constitutional Court on the constitutionality of the National Assembly rules governing the removal processes for the office-bearers of institutions supporting democracy.

Mkhwebane had lost part of her Constitutional Court case where she sought to have the impeachment proceedings against her dismissed. The court had ruled that she be granted full legal representation during the proceedings, however, it allowed for the parliamentary inquiry to go ahead.

She filed an application to interdict the Parliament inquiry into her fitness to hold office, pending her Constitutional Court rescission application on its earlier ruling.

There was an agreement among all the parties, except the DA, represented by advocate Stephen Budlender SC, that the matter should be postponed to 18 and 19 May. 

Budlender said the DA did not support the postponement, as there was no proper basis for it, and it would lead to a delay and prejudice. However, as a matter of practicality, because the other parties had agreed to a postponement, he would not object.