Mkhwebane’s ‘ridiculous’ ConCourt application has ‘no hope of success’

With the prospects of success of Public Protector Busisiwe Mkhwebane’s planned bid to get the Constitutional Court to rescind its judgment on the rules for the removal of chapter 9 heads “slim to zero,” experts say it smacks of nothing more than a desperate attempt at playing for time.

Last July, the Western Cape High Court declared as unconstitutional two provisions in the rules – one barring the subject of a removal process from having full legal representation, and the other allowing a judge to be appointed to the independent panel tasked with determining whether there is a prima facie case.

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The ruling had the effect of placing on ice the current proceedings against Mkhwebane, which by then had already seen a panel retired Constitutional Court Justice Bess Nkabinde was on find that there was a prima facie case.

Earlier this month though, the Constitutional Court ruled the High Court had erred in its findings relating to the appointment of a judge to the panel. As a result, the resumption of the current proceedings against Mkhwebane was given the all clear and the Section 194 committee tasked with handling these proceedings reconvened on Tuesday.

But it has now emerged that Mkhwebane plans on filing an application to have the Constitutional Court rescind its ruling, and her lawyers this week wrote to Parliament asking that the proceedings be halted – again – pending the outcome.

The Parliamentary Legal Service’s position is that as it stands the application has not yet been filed and there is, therefore, nothing preventing the committee from forging ahead. Against this backdrop, the committee on Tuesday took a decision to continue with the proceedings.

But what happens when – or if – Mkhwebane files the application? 

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Section 18 of the Superior Courts Act provides, in the main, that “the operation and execution of a decision which is the subject of an application for leave to appeal, or of an appeal, is suspended pending the decision of the application or appeal”.

The same, however, does not apply to a decision which is the subject of a rescission application. So, in order to get the proceedings halted, Mkhwebane has only two options: Convince Parliament to press pause or convince a court to give her an interdict.

Even if she can successfully manage either though, experts agree her prospects of success in the rescission application are near non-existent.

As constitutional law expert and Accountability Now director Paul Hoffman SC explained yesterday, Mkhwebane would have her work cut out for her trying to persuade a bench comprising some of the country’s top legal minds, it had made a mistake.

He expected the court would make “very short shrift” of her application in the end – with there being a chance it could refuse to hear the application and kick it to touch before it can even see the light of day.

“To put it bluntly, it’s ridiculous to think she’ll be successful,” Dr Llewelyn Curlewis – who lectures law at the University of Pretoria – added.

“In my opinion, the chances are almost zero,” he said.

“I can’t imagine that there’s anything she can now all of a sudden produce to convince them the initial finding was wrong.”

What, then, is her end game?

Hoffman believed Mkhwebane was trying to “string out the litigation for as long as possible so she gets to the end of her term of office” in October 2023.

“What Mkhwebane is trying to do is just get an extra bite at the cherry and buy herself some time,” he said.

Curlewis agreed, saying it appeared she was just “wasting time”.