Embattled Busisiwe Mkhwebane faces judgment days in 2021

The Constitutional Court’s decision on whether to order Jacob Zuma to appear at the state capture commission will be its first headline-grabbing role of 2021.

But after a year which saw the continuation of a slew of litigation against public protector Busisiwe Mkhwebane and a number of damning judgments against her, the apex court will also give judgment in her application to appeal against the high court’s setting aside of her Bosasa report.

Among other things, the report instructed the disclosure of the details of the donors to President Cyril Ramaphosa’s CR17 campaign, which culminated in his election as president of the ANC in 2017.

If the ConCourt decides that it wants to hear the appeal directly in the first place, the judgment should settle the question once and for all as to whether — as a matter of law — Ramaphosa should have disclosed who the donors to his campaign were.

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However, there is also a separate court case — also due to be heard in 2021 — in the high court about accessing the CR17 bank records that Mkhwebane accessed during her investigation and put before the court. The EFF wants those records made public, relying on section 19 of the constitution which guarantees people’s rights to campaign for a political cause — the cause being fighting corruption.

The big one to watch, however, will be the impeachment process against Mkhwebane in parliament; and her court case scheduled for February challenging the new rules that have been adopted for the process to impeach the head of a chapter nine institution.

Mkhwebane in 2020 failed in her bid to interdict the process and parliament has now appointed a highly respectable panel — former Constitutional Court justice Bess Nkabinde, senior counsel Dumisa Ntsebeza and academic Johan de Waal SC — to assess whether there is a prima facie case to justify a parliamentary inquiry into her fitness to hold office.

The process under the rules — even with no interrupting litigation — is a long one. And there is already a court case on the go about whether the rules are constitutional.

This will be the first time the newly minted impeachment rules will be implemented and the first time they will be tested in the courts. When the interdict application was argued, the high court was careful not to delve too deeply into whether the rules would withstand constitutional scrutiny, as the questions at the interdict stage are different.

There are also some key judgments awaited from the ConCourt, including on the constitutionality of the hate speech provision of the Equality Act — a vexed question for years and an important one — and on the constitutionality of the warrantless raids of people’s homes conducted in the Johannesburg inner city in 2017 and 2018 under Herman Mashaba’s administration.

October will be the end of the Mogoeng Mogoeng era. The chief justice was appointed to the Constitutional Court in 2009, one of a cohort of four, with Sisi Khampepe, Chris Jafta and Johan Froneman. Froneman has retired already and the other two are due to retire with Mogoeng — giving Ramaphosa the opportunity to make a real mark on the highest court. Not only will he be nominating a new chief justice but there will be five vacancies altogether as the vacancy left by Justice Edwin Cameron’s resignation is also still open.