Public protector Busisiwe Mkhwebane’s attempts to back out of a potentially bruising Constitutional Court showdown over the legal limitations of her powers have failed.
SA’s highest court will hear Mkhwebane’s urgent attempt to appeal against a high court ruling in favour of public enterprises minister Pravin Gordhan — despite Mkhwebane attempting to withdraw that appeal, and after President Cyril Ramaphosa argued she should not be allowed to do so.
That hearing could not be coming at a worse time for Mkhwebane, who is the subject of a potential parliamentary inquiry into her fitness to hold
office. The inquiry is being driven by multiple court rulings that have questioned her impartiality, honesty and competence. Parliament is working on the rules to facilitate the process.
A majority of the Constitutional Court justices have already found her to be dishonest and discredited in an earlier judgment involving Bankorp and the SA Reserve Bank.
Chief Justice Mogoeng Mogoeng’s order means Mkhwebane will have to go back to court to defend a case her lawyers had advised her she could not win. The office of the chief justice declined to give reasons why he wanted the matter to go ahead.
Mkhwebane had initially appealed against a high court judgment by judge Sulet Potterill suspending the public protector’s order that Ramaphosa take disciplinary action against Gordhan over the Sars “rogue unit”.
She approached the top court claiming Potterill’s findings stripped her of the support and assistance necessary to promote “constitutional governance”. She also said Potterill’s order was rendering her work ineffective.
Potterill found that if she did not grant an interim interdict staying remedial action, Gordhan would suffer irreparable harm. The judge, who was villified by the EFF, further found that Ramaphosa had acted rationally and lawfully by not taking action against Gordhan, pending the outcome of his review.
A few weeks later, Mkhwebane withdrew that urgent appeal, citing legal advice. Losing this case again will reinforce public perceptions that she is out of her depth in the job and incompetent. It will also reinforce claims that she is using her office to dabble in factional battles within the governing party.
Her spokesman Oupa Segalwe said: “We have no comment at this stage.”
Ramaphosa had also argued in court papers that Mkhwebane should not be allowed to backpedal on her appeal application. Even though Ramaphosa said he believed her appeal had no prospects of success, he contended it should be ventilated by the court because it raises important constitutional issues concerning institutions that are central to SA’s democracy.
He stated in court papers that his legal conflict with the public protector had driven “a heated and at times vituperative public debate that is potentially damaging to the executive, the public protector and the courts”, that needs to be resolved by the Constitutional Court.
The top court seems to have agreed with him.
The EFF also appealed against Potterill’s findings, and recently said it intended going ahead in the top court.