Mkhwebane’s fight far from over, but she could argue herself into bankruptcy

Public Protector Busisiwe Mkhwebane’s battle to stop a parliamentary probe is far from over, as her office has indicated the beleaguered advocate would study the judgment and forge a way forward.

According to political analyst Ralph Mathekga, Judge Vincent Saldanha’s dismissal of Mkhwebane’s bid to interdict the parliamentary probe into her fitness for office has all but doomed the second part of her application.

Part-A of her two-pronged application was for an interim interdict to suspend the parliamentary process for her removal from office, pending the determination of part B. Part B of her application is to have the courts review and set aside the rules upon which parliament was relying to effect the removal process.

Mathekga questioned Mkwhebane’s rationale behind attempting, again, to dictate to parliament as she apparently did when she released a report on an investigation into state bailouts received by ABSA Bank, with findings which instructed parliament to institute proceedings to change the constitution to expand the role of the South African Reserve Bank back in 2017.

Now Mkhwebane wants to ask the courts to review parliamentary rules on the removal of office bearers from Chapter 9 institutions, on the basis that not only were certain parties in parliament biased against her, but the rules themselves were specifically targeting her office.

He added that had Mkhwebane allowed for the probe into her fitness for office to proceed as per procedure, she would have had plenty recourse to have the findings of such a probe reviewed, should they not be in her favour.

He explains that even if there is a bias against her in Parliament, the institution is not immune to scrutiny for being arbitrary in its decision, and so challenging a decision to remove her should she find the reasons to be arbitrary was not only possible, but also much more favourable to her chances of keeping her job.

Mathekga, however, warned that “She is going to run out of money if she keeps pursuing these litigations, which she largely bases on political arguments rather than legal ones.”

Mkhwebane’s spokesperson Oupa Segalwe responded to the judgment in a statement, saying there were early indications that the judgment goes against everything that the Constitutional Court said in the recent case of Minister Pravin Gordhan v the Public Protector, which bears a similarity to the matter at hand.

In that case, which was handed down in May 2020, the minister sought an interim interdict to have the implementation of the Public Protector’s remedial action stayed pending the review of the findings.

“The apex court held that there was no foreseeable irreparable harm that the Public Protector would suffer if the interim interdict was granted, as it would not thwart her constitutional mandate or offend any of her constitutional powers and functions.”

Delivering the ruling, Acting Deputy Chief Justice Sisi Khampepe said at the time that the minister, on the other hand, would suffer discernible irreparable harm and prejudice should the interim interdict not be granted, he continued.

“She added that there was a reasonable apprehension of irreparable harm on the part of the minister and that it lay in the fact that he would be disciplined if the remedial action was not suspended.”

Mkhwebane’s legal team argued there were similar circumstances in this matter, where she would suffer irreparable harm should the interdict not be granted and the probe went ahead before the rules used to undertake it went under judicial review.

Mkhwebane argued that she had a reasonable apprehension of irreparable harm in that she would be prejudiced if the National Assembly carried on with the removal process while a review of the impugned rules, which the Assembly is relying on, was pending.

Segalwe said at face value, the implication of the Western Cape High Court judgment was that it was undesirable for the Public Protector to proceed with the implementation of binding remedial action against a respondent who is challenging its legality, but it is desirable for the Speaker of the National Assembly to implement impeachment rules whose constitutionality is yet to be determined by a court of law.

Simnikiweh@citizen.co.za

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