Judgment reserved in Mkhwebane court case to suspend inquiry

The High Court in the Western Cape has reserved judgment on former Public Protector Advocate Busisiwe Mkhwebane’s application to suspend the Section 194 Committee proceedings, which is currently investigating her fitness to hold office.

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Mkwebane is seeking a court order to, among others

• Review and set aside the committee’s decision last year (27 October 2022), to dismiss her application for a postponement or adjournment of the inquiry and/or to declare its decision to continue as unlawful.
• Review and set aside a decision by the committee chairperson, Qubudile Dyantyi, refusing to recuse himself.
• Review and set aside the decision of another committee member, Kevin Mileham, who also refused to recuse himself on the basis of his marriage to Natasha Mazzone, the MP who submitted the motion to institute an inquiry.
• Set aside the committee and/or speaker’s refusal to summon and/or subpoena’ at least one witness and recall three others (Mr Pillay, Mr Van Loggerenberg and Ms Baloyi) who are, according to Mkhwebane, required by her to testify and/or complete their evidence.

She is seeking a further order for Dyantyi and Mileham to be recused and that witnesses be subpoenaed and/or recalled to testify.

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Answering affidavit

Dyantyi, in his answering affidavit, is requesting the court to dismiss Mkhwebane’s application and compel her to pay the cost of three counsels, in her personal capacity.

Dyantyi labelled Mkhwebane’s application as an attempt to attack interlocutory rulings he and the committee have issued, saying this was one of a series of court challenges the suspended public protector used to stymie the parliamentary process to hold her accountable.

On setting aside the review application, he argued the committee has the authority, under Section 57 of the Constitution, to proceed with the inquiry, having dismissed Mkhwebane’s application for the chairperson’s recusal.

Dyantyi warned that further delays in finalising the inquiry process, whether it leads to Mkhwebane’s impeachment or vindication, goes against the public interest.

He emphasised the urgency to finalise the proceedings before the Public Protector’s term of office expires in October 2023.

Compiled by Narissa Subramoney

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