Court dismisses Mkhwebane’s bid to declare parliamentary inquiry unlawful

A full bench of the Western Cape High Court has dismissed with costs an application by suspended public protector Busisiwe Mkhwebane to declare unlawful and set aside proceedings of the Section 194 parliamentary inquiry committee into her fitness to hold office. Mkhwebane also sought to review the decisions on October 17 last year to dismiss the recusal applications she brought against committee chair Qubudile Dyantyi and committee member and DA MP Kevin Mileham.

She also sought to review the committee’s decision, made the same month, not to summon certain witnesses to testify at the inquiry, including President Cyril Ramaphosa.

Mkhwebane contended the decisions of Dyantyi and Mileham not to recuse themselves were in breach of the principle of legality, unconstitutional and invalid. The application was opposed by Dyantyi, Mileham and the DA.

Mkhwebane, the first head of a chapter nine institution to face impeachment proceedings, is accused of misconduct and incompetence.

In March 2021, an independent panel appointed to assess the merits of a motion to have her removed from office recommended parliament institute impeachment proceedings against her after finding prima facie evidence of incompetence and misconduct.

The inquiry into Mkhwebane’s fitness to hold office began its hearings on July 11 last year. Mkhwebane lodged an application seeking that the committee’s proceedings be adjourned pending her application to review the recusal decisions. On October 27, the adjournment application was refused, prompting Mkhwebane to launch the court application on November 7.

The respondents said the court was precluded from determining her application in the middle of ongoing proceedings.

In its judgment, the court said it would not be appropriate to permit a piecemeal review of proceedings.

Only in rare cases where grave injustice might otherwise result, would a court entertain a review before the conclusion of proceedings.

“With no exceptional circumstances demonstrated, the balance of convenience favours a decision to dismiss the application brought by [Mkhwebane].”

However, the court said the punitive costs order sought by the respondents was not warranted, as it could not find Mkhwebane deliberately embarked on vexatious litigation.