It is notoriously difficult to even try to predict which way judges will go in their rulings. Instead, the full Bench of the Western Cape High Court repeatedly asked for clarity from Public Protector Busisiwe Mkhwebane’s advocate, Dali Mpofu.

At times, Wednesday’s proceedings seemed a prologue for the Public Protector’s application to the Constitutional Court for the rescission of its refusal to rescind the 4 February 2022 judgment that upheld Parliament’s impeachment processes.

But it was about interdicting President Cyril Ramaphosa from suspending the Public Protector pending the parliamentary impeachment process, and also interdicting this Section 194 committee from proceeding. 

Once an interdict is granted, a second part would be argued in court on points like presidential conflicts, given the Public Protector’s investigations of Ramaphosa and the unconstitutionality of the Section 194 committee proceeding while the first rescission application was pending.

Until all this is done, according to Mpofu, the interdict needed to be in place. And that’s regardless of the Constitutional Court’s consideration of the application for a rescission of its refusal to rescind that February judgment.

Complicated? It’s what happens when a Stalingrad legal defence is driven through separate courts contemporaneously — and it includes a push for a rescission of a refusal to rescind that effectively is tantamount to refusing to accept the authority of South Africa’s highest court.

Mkhwebane could well be put in the same corner as ex-president Jacob Zuma, whose not guilty plea on a plethora of charges related to the multibillion-rand arms deal remains untested — despite his repeatedly stated wish to have his day in court — amid myriad challenges to proceedings.

While Zuma is no longer in the Union Buildings, the Public Protector he appointed remains in office. In some circles, the word is that this multiplicity of litigation aims to run down the clock on her non-renewable seven-year term that ends in October 2023.

Here, what seems to be key is the pending Constitutional Court application for a rescission of the refusal to rescind, largely on the back of an unsolicited SMS on this dismissal sent to Parliament’s counsel, which led to the postponement of the interdict proceedings from 25 April to Wednesday. 

Reversing the court’s previous upholding of the parliamentary impeachment processes would allow a renewed attack on the parliamentary rules, including the participation of a judge in the independent panel that assesses if grounds exist in the initial steps of the 17-step impeachment inquiry. 

A hint of this legal tactic came on Wednesday when, amid questioning from the judges, Mpofu said “we are rescinding the judge participating in the judgment”.

Nathi Mthethwa’s (final?) monumental red flag

But the main focus of Wednesday’s arguments in the Western Cape High Court seemed centred on whether there are impeachment proceedings actually under way already, and what Mpofu called the “festival of illegality” of the Section 194 committee on 22 February, the 10 March letter from National Assembly Speaker Nosiviwe Mapisa-Nqakula to Ramaphosa on the impeachment inquiry going ahead, and the presidential letter of 17 March asking Mkhwebane for reasons why she should not be suspended.

Mpofu argued that the process had not yet started, and would not start until 11 July — public hearings by the Section 194 committee start then, with four days set aside for Mkhwebane from 26 July, according to the programme — although that then raised questions from the Bench over the interdict sought against Ramaphosa.

According to Section 194(3)(a) of the Constitution, the president “may suspend a person from office at any time after the start of the proceedings…”

In a curious take on parliamentary rules, Mpofu seemed to argue that the chairperson of the Section 194 committee, Qubudile Dyantyi, didn’t actually have the power to call meetings. 

National Assembly Rule 161(2)(a) clearly states “a meeting of a committee may be called by the chairperson of the committee…”, while Rule 161(3) effectively compels the chairperson to call a meeting “within a reasonable time” when at least a third of the committee members have requested this.

And Rule 167 means committees can “summon any person to appear before it to give evidence on oath or affirmation or to produce documents”, conduct public hearings, receive petitions and submissions, “determine its own working arrangements” and meet at any venue on any day at any time.

As far as the National Assembly would be concerned, the inquiry started once the substantive motion of complaint against Mkhwebane was received, considered and approved to go ahead in terms of the “Removal of Officer Bearers in Institutions Supporting Constitutional Democracy” parliamentary rule that was unanimously adopted on 3 December 2020.

The Section 194 committee was established — and political parties allocated who would serve on that committee — in a series of steps in March and April 2021.

At times, that removal-from-office process was halted. Once, when Mkhwebane brought the first interdict application that was dismissed in October 2020.

A second pause in the parliamentary proceedings came when the National Assembly appealed directly to the Constitutional Court against the July 2021 Western Cape High Court ruling that banned judges from the independent initial assessment panel, and rewrote the rules to allow full legal representation, not just advice.

From August 2021 to February 2022, Parliament held back. That changed with the 4 February Constitutional Court ruling. 

While the Public Protector filed a rescission application, the Section 194 committee met and decided to go forward by, among other measures, appointing evidence leaders. 

When, on 6 May, the rescission application was dismissed, the Section 194 committee adopted its programme on 11 May — that’s where the 11 July date comes from — and to open the process for members of the public to come forward, under oath, with evidence.

Right now, Mkhwebane has until 22 May to give the Section 194 inquiry her first take on the counts of incompetence and misconduct. She has until 20 May, according to the Sunday Times, to provide Ramaphosa with reasons why she should not be suspended pending the inquiry.

As far as the Section 194 committee is concerned, nothing has changed.

On Thursday, the full Bench of the Western Cape High Court will hear from the lawyers representing the Democratic Alliance and the President. 

Parliament is opposing this interdict. DM

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