Public protector Busisiwe Mkhwebane did an about-turn this week: On Monday she said she would be seeking to postpone her court case, due back in the Western Cape High Court this week, about her possible impeachment and suspension. By Friday, she said there would be no postponement.
The pivot made sense: on Wednesday parliament decided it would press ahead with its inquiry into her possible impeachment.
On Thursday, President Cyril Ramaphosa’s attorneys said in a letter to the public protector’s attorneys he was “not amenable” to any further undertakings to put off deciding on whether to suspend her.
He has given Mkhwebane until May 20 to tell him why he should not do so. The only thing that will seemingly put a stop to both processes is a court order.
But her chances of getting one appear increasingly tenuous. Her case on the constitutionality of the impeachment rules reached the end of its road in February.
The apex court found in her favour in one respect but, importantly, cleared the road for parliament’s inquiry into her fitness for office to proceed. Her case in the high court, back in 2020, to put everything on hold pending the Constitutional Court’s decision, failed.
She then went back to the Western Cape High Court this year seeking to put everything on hold again, but on precarious grounds: her case, at least as far as the impeachment process is concerned, is largely based on having gone back to the Constitutional Court asking it to rescind or reverse the Constitutional Court’s February judgment.
But rescission is available in the most narrow and exceptional of circumstances. That application was always expected to fail, and it did. On May 6 the court ordered that no case had been made for rescission.
This week she made legal history by returning to the apex court, insisting that it rescind its earlier refusal to rescind. Her grounds? An SMS sent by Ismail Abramjee to counsel for the speaker of parliament, Andrew Breitenbach SC, in the high court case.
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.”
When the SMS first came up in the Western Cape court the parties agreed to postpone to find out if the contents of the message were true. The response from the Constitutional Court was brief. The allegation was being investigated and the outcome “will be communicated to the parties when the court has finalised its processes and made its decision”.
The public protector was unhappy with this response, saying it raised more questions than answers. She wrote back to the Constitutional Court asking a series of further questions over four pages, including about how the investigation was being conducted.
The Constitutional Court was having none of that. On May 6, alongside its dismissal of her rescission application, it responded with a single line: “Please be advised that the court reiterates its response dated April 29 and in that regard will not engage in correspondence of this nature with a litigant.”
Meanwhile, from parliament’s point of view, the Constitutional Court’s initial response meant that the contents of the SMS were “false”, said a letter from the state attorney for the speaker and the impeachment committee.
The letter said their interpretation of the Constitutional Court’s response was that at that stage “the rescission application remains pending and [the court] has not made its decision”.
Not at all, said Mkhwebane’s attorneys, Seanago Inc, saying that even though the order was not announced by the specific Friday Abramjee had indicated, the fact that the application was refused showed that the SMS’s contents were true.
“To pretend that the issuance of exactly the same order was a coincidence would be the biggest insult to any person’s intelligence and that of the members of the SA public,” said Seanago.
All the parties are due back in the Western Cape High Court on Wednesday and Thursday. In her practice note, filed in court on Friday, Mkhwebane’s lawyers said the fact that she has applied to rescind the Constitutional Court’s refusal to rescind means “the status quo ante May 6 2022 [when the apex court dismissed Mkhwebane’s rescission application] has been effectively restored”.
In other words, the Constitutional Court’s dismissal of the rescission application is to be effectively ignored.
Mkhwebane had initially wanted to postpone the high court proceedings pending the outcome of the Constitutional Court’s investigation into the SMS. But, said Mkhwebane’s practice note, “due to the threatened opposition ... and to save the time of the full court, the applicant will no longer bring a postponement application”.
Instead, Mkhwebane would introduce new evidence and raise “deep concerns”. There were implications for the issues before the court, said her lawyers, including that “issues surrounding the alleged leakage of information from the Constitutional Court remain unresolved”.
The DA’s position over the relevance of the SMS to the case at hand looks set to be a fighting one. In a letter this week it said: “Whatever the chief justice may or may not find can have no impact at all on Adv Mkhwebane’s doomed application in the high court. Her application is not based on the SMS by Mr Abramjee. She cannot now convert her cause of action to be one based on some half-baked conspiracy theory.”
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