Parliament to proceed with Mkhwebane’s impeachment process amid SMS scandal

Parliament has decided yet again to proceed with the impeachment process against Public Protector Busisiwe Mkhwebane amid a controversial leak.

Parliament’s Ad Hoc Committee on the Section 194 Inquiry met on Wednesday to discuss the process into Mkhwebane’s fitness to hold office.

This is after the public protector saw her rescission application dismissed by the Constitutional Court (ConCourt) last Thursday, 6 May.

Mkhwebane approached the ConCourt with a rescission application – which was opposed by Parliament – seeking an order for the apex court to reverse its February ruling.

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The ConCourt had at the time given the committee the green light to proceed with Mkhwebane’s impeachment.

The public protector had also sought to have the impeachment process suspended, via an interdict, until the rescission was finalised.

She filed her interdict papers at the Western Cape High Court and the matter was postponed to 18 May and 19 May.

Mkhwebane also sought to interdict President Cyril Ramaphosa from suspending her.

Ramaphosa, in March, wrote to Mkhwebane asking her to explain why he should not suspend her.

Another rescission

The committee has since learned that Mkwebane has filed another rescission application in a bid to reverse the 6 May ruling.

The public protector wants the ConCourt to rescind its own ruling pending the outcome of Chief Justice Raymond Zondo’s investigation into the leaking of information, allegedly, by Ismail Abramjee.

Last week, Mkhwebane opened a criminal case against Abramjee and his unknown accomplice or accomplices.

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

Abramjee is alleged to be the man who had claimed to be aware of the ConCourt judgment regarding Mkhwebane’s rescission application, which was leaked.

It is said that Abramjee sent an SMS to advocate Andrew Breitenbach, the lead senior counsel for National Assembly speaker Nosiviwe Mapisa-Nqakula, saying that he had it “on good authority” that the ConCourt had decided to dismiss Mkhwebane’s application.

He also said the apex court would make the decision public before last week Friday.

While Zondo recently told SABC that the leaking of the judgment was “unacceptable”, and that an investigation had been launched, Mkhwebane also indicated that her office would also be investigating the alleged ConCourt leak to the extent that the law permitted.

‘No legal impediment’

During Wednesday’s virtual meeting, which was described as a continuation of a “festival of letters”, Parliament’s legal adviser Siviwe Njikela told MPs that despite the latest development, it did not hamper the committee from proceeding with the impeachment.

“As we have been saying for months now, there is no legal impediment to the committee proceeding. I think our position has not changed that legally nothing prevents the committee [from continuing]. But the committee has an option to decide what it wants to do,” he said.

ALSO READ: Mkhwebane files interdict to halt impeachment, slams Ramaphosa’s ‘conduct’ in papers

On whether the matter is sub-judice, Njikela said Parliament’s work “cannot be trumped by what is before court otherwise Parliament will be paralysed in every instance”.

“It means all you have to do is file an application before court. We have repeatedly said to this committee and other committees that Parliament is a separate arm of government. It has a constitutional mandate to deal with specific issues.

“There is no court that has power to decide whether the public protector is incompetent or misconducted herself. That power is exclusively within the constitutional mandate of Parliament. In as far that issue is of concern, no court is competent to make that decision so it can’t be sub-judice,” Njikela explained.

The meeting then concluded that the committee would proceed with the impeachment.

According to Parliament’s provisional programme, Mkhwebane will start physically appearing before the inquiry in July.

The public protector will be the first head of a Chapter 9 institution to face a parliamentary inquiry.

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