Pyrrhic victory for public protector
• High court rejects ‘unfitness’ bid, but only due to action in parliament
In a rare legal victory for the public protector Busisiwe Mkhwebane, the high court in Pretoria has dismissed an application by the Institute for Accountability in Southern Africa — now called Accountability Now — to have her declared unfit to hold office.
However, judge Phillip Coppin stressed on Tuesday that his ruling in no way constitutes a finding on Mkhwebane’s fitness to hold office, but is motivated by the National Assembly considering a possible impeachment process against her.
“The grant of the relief sought by the institute in these proceedings would, in my view, directly and possibly impermissibly infringe upon the constitutionally mandated terrain of the National Assembly [and the president],” he stated.
Coppin refused to grant Mkhwebane’s application for a personal costs order to be issued against the institute’s director, Paul Hoffman, for launching its litigation against her.
Mkhwebane, who has herself been ordered three times to personally pay a percentage of the legal costs of those challenging her reports, argued that the institute is Hoffman’s “instrument of pursuing his political and ill-conceived attacks on his political opponents”.
The court rejected that argument as “relatively threadbare and unsubstantiated ... The issues raised cannot be characterised as mere political point scoring by Mr Hoffman, but are of momentous public interest,” Coppin ruled.
He added that the costs order sought by the public protector against Hoffman “unjustifiably undermines” the good faith of the institute.
Accountability Now argued that the scathing rulings delivered against the public protector in the Reserve Bank and Estina Dairy Farm cases, in which her honesty, impartiality and legal competence were questioned, were an adequate basis for the high court to rule that Mkhwebane is unfit to hold office.
The EFF, which applied to intervene in the case in support of Mkhwebane, argued that these court rulings were not admissible evidence against her in another court. But Coppin rejected that contention, and stressed that though such rulings “constitute expressions of opinion, they cannot be equated with the opinions of ordinary individuals and cannot be treated as such.
“Those findings were made by judges and confirmed, in certain instances, by the justices of the highest court of the land.”
Coppin’s rationale appears to undermine Mkhwebane s belief that the judgments made’ against her cannot be a basis for her impeachment, as they are simply the “opinions” of the judges who made them.
His decision in this case may well become relevant when Mkhwebane argues her Constitutional Court challenge to the rules governing her possible impeachment in parliament, later in 2020.