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Judgment reserved in PP application for leave to appeal dismissal of bid to halt removal proceedings

Public Protector Busisiwe Mkhwebane.(Jan Gerber/News24).

  • Judgment has been reserved in Public Protector Busisiwe Mkhwebane’s application for leave to appeal.
  • She wants to appeal the Western Cape High Court’s dismissal of her application to interdict the National Assembly from instituting removal proceedings against her.
  • Speaker of the National Assembly Thandi Modise is ready to proceed with the process.

Judgment has been reserved in Public Protector Busisiwe Mkhwebane’s application for leave to appeal the Western Cape High Court ruling which dismissed her bid to halt the National Assembly’s removal proceedings against her.

The court battle began in February, after Mkhwebane filed an urgent application for an interdict to halt the process to remove her from office.

The process was initially set in motion by National Assembly Speaker Thandi Modise’s approval of a DA motion. This, after the National Assembly approved rules for such a process, also called impeachment, in December 2019.

Last month, 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.

On Tuesday, Saldanha, Steyn and Samela listened to arguments in the application for leave to appeal.

“The number of errors which permeate the judgment in question is innumerable,” Mkhwebane’s legal counsel, advocate Dali Mpofu SC, stated in his heads of argument.

It is hardly contestable that the decision of this court has immediate and substantial ongoing and irreparable harm on one of the most important offices set up for the protection of democracy.

Advocate Andrew Breitenbach, SC, for Modise, said there was “no prospect of the Supreme Court of Appeal holding that this court is wrong”.

“My learned friend had to give the court a compelling case,” said Breitenbach. “This case was far from compelling.”

Advocate Steven Budlender, SC, for the DA, described Mpofu’s arguments as “threadbare” and said he failed to meet any of the requirements for interim relief.

The rules for removing a Chapter 9 head allowed the President to suspend the head while the removal proceedings were underway.

Advocate Karrisha Pillay, SC, for President Cyril Ramaphosa, said even if the court granted leave to appeal, it would have no effect, as Ramaphosa would not suspend her while the court proceedings were underway.

Mpofu said they wanted to be protected by a court order. “Now we need to be protected by a voluntary undertaking that can be withdrawn at any time.”

During Mpofu’s responding arguments, Saldanha said: “Really, you must read the judgment and not misrepresent the judgment.”

Last week, at the meeting of the National Assembly Programming Committee, secretary to the National Assembly, Masibulele Xaso, said Modise was ready to announce the panel that would decide whether there was a prima facie case for Mkhwebane’s removal.

“All that needed to be done, was done,” he said, adding that an announcement in this regard should be expected this week.

Mkhwebane’s application for an interdict against the removal proceedings was only Part A of her application. In Part B, she’s asking the court to declare the National Assembly’s rules for the removal of a Chapter 9 head unconstitutional and invalid. This was expected to be heard early next year.

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