Public protector loses another round in ongoing impeachment legal battle
Public protector Busisiwe Mkhwebane has been refused leave to appeal against the judgment that rejected her bid to interdict parliament’s impeachment process against her.
The Western Cape High Court on Monday dismissed her application for leave to appeal.
On behalf of a unanimous bench of three judges, judge Vincent Saldanha said Mkhwebane had accepted that she had a high threshold to meet to succeed in her leave application, and had failed to establish any of the grounds required in law to grant leave to appeal.
In October, the high court refused to grant her an urgent interim interdict to prevent parliament from taking any further steps in a process — still in its early stages — that could ultimately lead to her impeachment. She had sought this as an interim step pending her court challenge to the constitutionality of the recently adopted rules for the impeachment of the heads of Chapter Nine institutions, which is yet to be heard.
Saldanha said one of Mkhwebane’s appeal grounds was that the judges should have dealt in their judgment with each and every argument she had made in court. However, to grant the interim interdict she sought, she would have had to satisfy every requirement for an urgent interim interdict. But “we were of the view that the applicant had failed to establish any of the requirements for interim relief,” he said.
Nor was the bench persuaded that it had misapplied the test for the granting of interim interdicts. As for the rest of Mkhwebane’s “37 challenges to the judgment”, the bench felt it was unnecessary to deal with each one — “as the main judgment dealt comprehensively with the relief sought by the applicant”.
In their October judgment, the full bench had said the impeachment provisions in section 194 of the constitution was “a serious mechanism” for the accountability of the office bearers of Chapter Nine constitutional institutions. For a court to interfere in that process, an applicant had to demonstrate “exceptional circumstances”. Mkhwebane had failed to do so.
The court also said in the main judgment that, despite trenchant criticism by Mkhwebane of speaker of parliament Thandi Modise and the DA — which brought the motion to impeach Mkhwebane — it said he was not persuaded that Modise had “in any way” acted in bad faith.
“I am equally not persuaded [that] the complaints of mala fides by the applicant against the tenth respondent (the DA) are ... sustainable,” said Saldanha.
Mkhwebane may still petition the Supreme Court of Appeal for leave to appeal.
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