Mkhwebane’s ‘fatal concession’
● Public protector Busisiwe Mkhwebane believes it is highly unlikely she will lose her job, even if she loses her application to interdict parliament from acting against her.
This statement, made in her founding affidavit, was a “fatal concession”, said counsel for the speaker of parliament in court this week, pointing out that one requirement of an interdict was to show the applicant would suffer irreparable harm if it was not granted.
Judge Vincent Saldanha suggested: “If there is no risk of her suffering irreparable harm, why is an interim interdict being sought?”
“It is the end of the application, with respect,” responded Andrew Breitenbach SC, for speaker Thandi Modise.
This was later disputed by Mkhwebane’s counsel, Dali Mpofu SC, who said the public protector could suffer other forms of harm, including to her dignity, in an impeachment process.
The court battle between Mkhwebane, parliament and the DA is over an impeachment brought last December. The public protector wants the Western Cape High Court to interdict parliament from taking further steps against her, pending her challenge of its impeachment rules.
The hearing on Wednesday and Thursday was to deal only with part A of Mkhwebane’s case — the interdict application. Part B is on the constitutionality of the rules, planned for a hearing in November. No public protector, nor a president or a judge, has been impeached, making this new territory for the courts.
Breitenbach reminded the court why Mkhwebane’s impeachment was being sought. He quoted from last year’s Constitutional Court judgment on the public protector’s Bankorp report that made history when it ordered that she personally pay for the costs of litigation.
The Constitutional Court — from which there is no appeal or review — said Mkhwebane “had not been candid”, had “acted in bad faith”, was “not honest”, that she put forward “a number of falsehoods”, and had made “misrepresentations under oath”.
The impeachment rules that Mkhwebane will challenge in part B have never been tested by the courts.
There were several exchanges between the bench and counsel that set the stage for part B. Was it, for example, constitutional that lawyers were not allowed to speak for the public protector before parliament’s impeachment committee? Was it constitutional that the rules allow for impeachment in cases of temporary incapacity, when the constitution refers only to “incapacity”?
Part A was about the interdict, said counsel for the DA Steven Budlender SC. There were legal requirements for an interim interdict, and each one had to be present before a court would grant one, he said. The public protector did “not even get off the starting blocks”, having not fulfilled these, he said.
There was no need for the court to look at whether the rules were constitutional if Mkhwebane could not demonstrate that she had a “reasonable apprehension that she would suffer irreparable harm”.
Breitenbach read from Mkhwebane’s affidavit: “The harm to which I, members of my staff and the public is likely to suffer is not really so much my intended removal. This is very unlikely to happen.” This was the fatal concession, he said.
Mkhwebane had an even harder task because she was up against parliament, he said. Based on a previous judgment of the Constitutional Court the harm suffered by Mkhwebane had to be weighed against harm to the principle of separation of powers if an interdict was granted by a court against parliament.
Mpofu said Breitenbach had taken Mkhwebane’s statement out of context. He referred to a recent judgment by the Constitutional Court that had given public enterprises minister Pravin Gordhan an interim interdict against the public protector.
In that case, the court said that the harm to Gordhan — in being disciplined by the president, appearing before parliament’s ethics committee and criminally investigated by the police — outweighed the harm to the public protector even factoring in the separation of powers.
Mpofu said there were a number of reasons why Mkhwebane would suffer irreparable harm — all set out in her court papers.
Budlender and Breitenbach said the separation of powers harm weighed heavier than any harm to Mkhwebane.
To grant an interdict here, “you need the clearest of cases. We are nowhere near that”, said Budlender.