Relief sought by Mkhwebane ‘not competent’, Ramaphosa’s lawyer tells court

Public Protector Busisiwe Mkhwebane’s interdict hearing returned for the second day at the Western Cape High Court on Thursday, with counsel representing parliament and President Cyril Ramaphosa arguing their cases.

Mkhwebane had filed her interdict application at the court in two parts.

In part A, the public protector seeks an order forcing National Assembly Speaker Nosiviwe Mapisa-Nqakula to halt the impeachment process as well as preventing President Cyril Ramaphosa from suspending her.

READ MORE: Another win for Ramaphosa as court dismisses Mkhwebane’s CR17 rescission application

In part B, the public protector wants Mapisa-Nqakula’s decision to send a letter to Ramaphosa declared “unconstitutional” and “invalid”.

The speaker had informed the president in the letter – dated 10 March – that Parliament’s Ad Hoc Committee on the Section 194 Inquiry would proceed with the impeachment.

Ramaphosa then wrote to Mkhwebane on 17 March asking her to explain why he should not suspend her and gave her 10 days to respond.

The public protector wants Ramaphosa’s letter to her declared unlawful as well.

‘Susceptible to challenge’

Ramaphosa’s lawyer advocate Karrisha Pillay said during Thursday’s proceedings the relief sought by Mkwebane was not competent and asked the court to refuse this submission.

“It cannot be granted by way of interdictory relief because import of what is being sought is an order regulating past conduct. We know that an interdict cannot regulate past conduct except of course when there is continuing harm,” she said.

ALSO READ: ‘By hook or crook, but mostly crook’ – Mpofu on plans to impeach Mkhwebane

“The letter of the 17th of March, which did no more than give the public protector an opportunity to make representations on the question of suspension, creates no harm, past future or ongoing and that ought to be dispositive of it,” Pillay further said.

The advocate argued that had the letter not been sent, Ramaphosa’s conduct would not have been “susceptible to challenge” by Mkhwebane.

She also insisted the public protector can be lawfully suspended pending her impeachment process.

Conflict of interest

On Mkhwebane’s argument that Ramaphosa is conflicted so he cannot suspend her, Pillay asked the court: “If the President is conflicted, should he be prohibited from taking any step in pursuance of suspension or delegate for that matter? [I ask] this to underscore the breadth of what is being sought.”

 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.

READ MORE: Timeline: How Mkhwebane’s impeachment will unfold

But Pillay further argued 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,” the advocate continued to explain.

SMS saga

Earlier in the court proceedings, advocate Andrew Breitenbach, who is the lead senior counsel for Mapisa-Nqakula, made his submissions, arguing that the committee should continue with its work without further disruptions.

While Mkhwebane’s lawyer, advocate Dali Mpofu on Wednesday argued that the committee met unlawfully before the impeachment process started, Breitenbach told the court that the committee had the power to convene at their own discretion.

“Section 237 of the Constitution says when these are imposed, they must be performed diligently and without delay,” Breitenbach said.

ALSO READ: Abramjee’s leaked SMS meant to influence Mkhwebane’s interdict outcome, Mpofu tells court

On the SMS saga, 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.

“The objective facts, unlike the speculation, point to there being very little prospect of the Chief Justice’s investigation revealing that one of the justices of the court participating in the decision to dismiss the first rescission application, were responsible for a leak to Mr [Ismail] Abramjee,” he said.

In the SMS sent to Breitenbach, legal consultant Ismail Abramjee claimed that he had it “on good authority” that the Constitutional Court (ConCourt) 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.

READ MORE: Timeline: How Mkhwebane’s impeachment will unfold

Mpofu labelled the SMS leak “the biggest scandal to ever hit our courts”, saying Mkhwebane was confident that “Abramjee is either a sangoma or there is something more serious to it”.

The judiciary as well as the public protector’s office are investigating the alleged ConCourt leak.

While Mkhwebane opened a criminal case against Abramjee, she has also filed another rescission application, in a bid to reverse the 6 May ruling.

Mpofu told the court on Wednesday that Mkhwebane’s interdict hearing, which was postponed on 26 April due to the leak, should be suspended “where there is a possibility” that a ruling may be reversed in light of the second rescission application.