Mkhwebane appeals against judgment on removal from office

PUBLIC Protector Busisiwe Mkhwebane will appeal against the Western Cape High Court decision to dismiss her application to stop the parliamentary inquiry into her fitness to hold office.

Mkhwebane has hauled National Assembly Speaker Thandi Modise and President Cyril Ramaphosa, among others, to court in her bid to stop the establishment of the committee to probe her fitness to hold office.

The high court dismissed Mkhwebane’s application last month.

”This three-legged application for leave to appeal is accordingly broadly premised on the applicant’s (Mkhwebane’s) contention that the appeal would have a reasonable prospect of success, on the presence of other compelling grounds for its granting and/or on the basis that certain important issues were not addressed in the judgment and the appeal would accordingly lead to a just and prompt resolution of the real issues between the parties,” she states in her heads of argument.

Mkhwebane insists that it is hardly contestable that the high court’s decision causes immediate and substantial, irreparable harm on one of the most important offices set up for the protection of democracy.

”The Speaker of Parliament (Modise) has already issued a public pronouncement that she now intends to forge ahead with the appointment of the independent panel, which may include a sitting or retired judge, and the rest of the removal process,” she says.

Mkhwebane also accuses some Members of Parliament of having already stated that she is unfit for office, a clear pre-determination and a breach of the rules of the removal of heads of chapter nine institutions.

According to the public protector, Parliament’s rules prohibit the discussion of matters before the courts, which is a salutary rule which is aimed at ensuring the independence of the courts and non-interference by the other arms of state to ensure the necessary levels of separation of powers.

”Its constitutionality has not been attacked by the respondents (Modise, Ramaphosa and others) and it must therefore be accepted. No exceptions or qualifications have ever been defined for the application of the rule,” Mkhwebane maintains.

Her appeal was scheduled to be heard for three hours on Tuesday afternoon.