Impeachment process tainted, Mkhwebane says in affidavit
There was no conceivable scenario in which the impeachment process against her was untainted, public protector Busisiwe Mkhwebane said in an affidavit to the Western Cape High Court yesterday.
Mkhwebane’s affidavit was filed in support of an application to put additional evidence before the court, which is due this week to hear an urgent application to put a halt to the impeachment process in parliament and prevent her possible suspension by President Cyril Ramaphosa. The affidavit sets out what has happened since an SMS from Ismail Abramjee was sent to Andrew Breitenbach SC, counsel for the speaker of parliament.
The SMS said: “Hello Adv Breytenbach [sic], Re: The public protector case tomorrow. I have it on very good authority that the ConCourt has declined to hear the public protector’s rescission application.
“The decision will be made known some time this coming week but not later than Friday.
“I thought I’d share this with you on a strictly confidential basis. Thanks.”
The SMS related to an application by Mkhwebane to the Constitutional Court, then pending, to rescind its February judgment that cleared the way for an impeachment process to get under way.
Breitenbach was counsel in the Western Cape High Co urt case, which was a separate but related case for an interim interdict to prevent the impeachment process, pending the outcome of the rescission application. After the parties wrote to the apex court about the SMS, it said it would investigate the allegation and the outcome of the rescission application would be communicated to them.
On May 6, the Constitutional Court dismissed the rescission application.
Last week, parliament decided to press ahead with its impeachment process and Ramaphosa gave Mkhwebane a deadline to tell him why he should not suspend her.
A letter on Thursday from the president’s lawyers said May 20, but after discussion between the legal teams, the deadline is now May 26.
In her affidavit yesterday, Mkhwebane said other than that the court’s order was “one week later than foretold, the order handed down on May 6 2022 confirmed exactly Mr Abramjee’s illegal SMS”.
He knew what the decision was and, more disturbingly, he knew the decision would be given without the court issuing directions, asking for further affidavits or holding a hearing.
There was “no conceivable scenario in which the current impeachment process is legitimate and untainted”, she said.
Mkhwebane has since applied to the Constitutional Court for its refusal to rescind itself to be rescinded on the basis the investigation into the potential leak has yet to be completed.