WESTERN CAPE HIGH COURT DISMISSES PUBLIC PROTECTOR ADV MKHWEBANE’S APPLICATION TO INTERDICT THE SECTION 194 COMMITTEE PROCESSES
Parliament, Friday, 10 June 2022 – Parliament welcomes the dismissal of the application for urgent interim relief by the Public Protector, Adv. Busisiwe Mkhwebane, with a personal costs order against her. Adv Busisiwe Mkhwebane sought to interdict the Speaker of the National Assembly (NA), Ms Nosiviwe Mapisa-Nqakula, and the Section 194 Committee from taking any further steps in the process of the enquiry into her removal and simultaneously sought to interdict the President from suspending her.
The application by the Public Protector follows the resumption of work by the Committee on Section 194 enquiry - which was established to consider the motion for her removal.
The Committee had resumed its work following the Constitutional Court judgment, which held that Parliament may proceed with the enquiry, provided it made provision for the Public Protector’s legal practitioner or other expert assisting her to participate in the Committee. The court further found that the inclusion of a judge in the panel of experts did not offend the doctrine of separation of powers.
In her Notice of Motion, Adv. Mkhwebane sought an interim interdict pending the finalisation of part B of her review application, where she seeks, among other things, a declaration of invalidity and setting aside of the Speaker’s letter to the President dated 10 March 2022, a declaration of unconstitutionality and the setting aside of the conduct or decision of the Section 194 Committee to resume. Her basis for the interdict and review application is that the Constitutional Court is yet to decide on the matter of her second rescission application.
In her answering affidavit, the Speaker clarified that her letter to the President had no legal bearing on the President’s constitutional powers as she was merely informing him of factual developments within the National Assembly, more specifically in the Section 194 Committee.
She further submitted that Section 194 of the Constitution is the ultimate accountability-ensuring mechanism for all office-bearers of Chapter 9 institutions. Speaker Mapisa-Nqakula added that the Section 194 impeachment process was inherently urgent, not just because of its obvious importance in our constitutional democracy but because, like all constitutional functions, section 237 of the Constitution requires its diligent performance without delay.
In our view, the full bench of the High Court is correct that Adv Mkhwebane’s argument that the rescission application suspends the launching of the inquiry is not sound, as a rescission application has no legal effect on the underlying order or else it would erode the rule of law.
The court also found it untenable that Adv Mkhwebane sought to resuscitate in this application the failed challenge in the previous application to the same court. The court also agreed that the prospect of success in the second rescission application “vary from non-existent to slim”.
We agree with the court that held that the application fell overwhelmingly short of the requirements of interdictory relief because she has not shown even a prima facie right that should prevent the Committee from continuing with the impeachment process. Further, any interdict would cause inordinate delays, the court reasoned, which would cause serious prejudice against the separation of powers and the public interest.
The court also provided clarity on the fact that the sub judice rule cannot find application in this case, as the judicial process is distinguishable in focus from that of the Section 194 impeachment process, and confirmed that the Constitutional Court’s ruling on the application of the National Assembly rules regulating the section 194 process is final.
The order by the High Court confirms that the Section 194 Committee was correct to continue with its planned programme.
Issued by Parliament, 10 June 2022
