Mkhwebane’s application for leave to appeal dismissed

The Western Cape High Court has found Public Protector Busisiwe Mkhwebane’s application for leave to appeal the court for not halting the National Assembly’s removal proceedings against her has no prospects of success.

After the removal proceedings got underway earlier this year after the DA lodged a motion with National Assembly Speaker Thandi Modise, Mkhwebane brought a two-part court application.

In the first part, she asked the court for an interdict to stop the removal proceedings. In the second, she asked it to declare the rules the National Assembly adopted for removal proceedings in December last year as unconstitutional and invalid. This will be heard early next year.

In October, Judge Vincent Saldanha ruled, with judges Monde Samela and Elize Steyn’s concurrence, that there would be “serious prejudice to the public interest, coupled with the separation of powers harm to the National Assembly if the process does not ensue”.

Saldanha said the relief Mkhwebane sought would not only impact her position, but prevent the National Assembly from holding other Chapter 9 institution heads accountable.

“The applicant [Mkhwebane] has, in my view, failed to meet any of the requirements for interim relief,” read Saldanha’s judgment.

Last week, Saldanha, Steyn and Samela listened to arguments in Mkhwebane’s application for leave to appeal this ruling.

According to a statement from Parliament, in refusing leave to appeal, the court held, among others, the impeachment process of an office bearer of a Chapter 9 institution was a serious mechanism for accountability under the Constitution and a court should not lightly interfere with such processes.

The court further found the applicant had failed to establish all of the requirements for interim relief, such as irreparable harm, the balance of convenience and there were no suitable alternative remedies available to her.

It also found there existed no prospects of the appeal succeeding.

The Public Protector was ordered to pay the costs of the Speaker and one other respondent, the DA.

Last week, Modise appointed former Constitutional Court judge Justice Bess Nkabinde, and senior advocates Dumisa Ntsebeza SC and Johan de Waal SC to the independent panel that should consider whether there is a prima facie case for Mkhwebane’s removal.

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