The Constitutional Court on Wednesday dismissed the suspended Public Protector Busisiwe Mkhwebane’s clutching-at-straws bid to halt the parliamentary impeachment inquiry, which, at around the time the court made its finding, heard more about unreasonable work deadlines, demands and disciplinary proceedings.

The court did not mince its words and also slapped Mkhwebane with a personal cost order.

According to the unanimous judgment on Wednesday: “[The Constitutional Court] has concluded that the application should be dismissed as no case has been made out for rescission. The applicant ought to pay costs in her personal capacity, as this application constitutes an abuse of process of court.”  

It had been an unprecedented application for South Africa’s highest court to rescind its previous dismissal of an earlier rescission application against its 4 February judgment that effectively cleared the way for the current Section 194 parliamentary impeachment inquiry. Then, the Constitutional Court upheld Parliament’s processes and rules — but allowed full legal representation, rather than the originally envisaged legal advice, for those facing potential removal from office.

And that’s as good as it got for Mkhwebane after two years of litigation, which cost millions of rands, to stave off the parliamentary inquiry into her removal from office for misconduct and/or incompetence while also appealing against the setting aside of a host of reports.

Suspended Public Protector legal action hits end of the road just as impeachment hearings kick off

National Assembly Speaker Nosiviwe Mapisa-Nqakula welcomed the Constitutional Court order, saying: “We agree with the court decision to order the Public Protector to pay costs in her personal capacity as the application constituted an abuse of process of court.”

The Constitutional Court’s highly unusual blunt statement of “abuse of process of court”, alongside the personal cost order, is a strong signal of the dim view the judges take of such scorched earth legal tactics.

But such tactics have become the mainstay of Mkhwebane, also at the parliamentary impeachment inquiry. When she’s attended in person she’s remained silent except once to confirm it was her in a meeting with the intelligence inspector-general about probes into the tax agency’s so-called rogue unit and to tell MPs she’ll answer their questions in writing.  

Her Constitutional Court-affirmed right to full legal representation, still paid for by the Office of the Public Protector, means her lawyer, advocate Dali Mpofu SC, does the talking and conducts the often hostile, hair-splitting cross-examination.

Proceedings have been prolonged. The inquiry should be at the stage where it has heard all witnesses, including those of the Public Protector herself, and is discussing the evidence. A draft report was anticipated later this month, to be finalised with Mkhwebane’s final input and responses for submission to the House and a vote by the end of September. 

Now in week seven, the list of witnesses is not yet done. The impeachment inquiry has heard of the securitisation of the office, how a security unit and vetting replaced the previous confidentiality contracts, and how the State Security Agency (SSA) — Mkhwebane worked briefly as an SSA analyst immediately before being appointed as Public Protector in mid-2016, according to her CV for the job interview — assisted the Office of the Public Protector in the wording of the proposed constitutional amendment on the central bank’s mandate and on IT.

Visit Daily Maverick’s home page for more news, analysis and investigations

 Malicious compliance

It has also emerged how in Mkhwebane’s term a rigid institutional culture was imposed with superficial work deadlines that triggered malicious compliance and more administrative work that kept investigators in the office, rather than in the field. 

Not all of this is exactly new — even if it has now been thrown into stark relief in great detail. 

As far back as April 2018, Parliament’s justice committee heard how the SSA was involved at various levels in the Office of the Public Protector, as the Mail & Guardian reported. In August 2022, before the Section 194 inquiry, it emerged that ex-spy boss Arthur Fraser, once briefly Mkhwebane’s boss, was asked for the SSA to provide security training for the head of the newly established security unit at the Office of the Public Protector, Baldwin Neshunzhi. 

As far back as June 2018, Parliament’s justice committee was aware of doubtful labour practices at the Office of the Public Protector, with the appointment of the now late Sibusiso Nyembe as Mkhwebane’s special adviser without the finance minister’s approval.

In July and August 2022, a series of labour disputes emerged before the Section 194 inquiry, from whistle-blower Tebogo Kekana’s challenge against his dismissal, to the order by the Commission for Conciliation, Mediation and Arbitration that saw reinstatement and back pay for Sphelo Samuel, the boss of the Free State Office of the Public Protector, who turned whistle-blower. 

Wednesday’s witness, Ponatshego Mogaladi, the Public Protector’s executive manager for investigations, successfully won reinstatement after two years and one month on suspension.  

Together with her colleague Lesedi Seleke, she turned to the Labour Court, which in May 2021 ruled that dismissal could not be substituted for the respective two and three months’ suspension without pay and final written notices penalty imposed in the disciplinary process. Another colleague, Abongile Madiba, went through a separate disciplinary process on related charges and died a month after being dismissed in June 2021.

“He was too sick to defend himself. For him to go through that hearing he had to rely on his son,” Mogaladi told MPs on Wednesday. 

Mogaladi testified how she felt “victimised” by what she described as the Public Protector’s “unbending rigidity”. And she was frustrated by the office culture of superficial deadlines for work on reports — “I did not want to do malicious compliance” — and effectively setting herself up by agreeing to Mkhwebane’s request to also head the good governance and integrity unit. 

As a current employee of the Office of the Public Protector involved in investigations, Mogaladi had to obtain a waiver to testify before the parliamentary impeachment inquiry.

Mpofu had raised this as a point at the outset of his cross-examination late on Wednesday, but inquiry co-evidence leader advocate Nazreen Bawa SC explained that testimony would not cover current investigations. 

The inquiry continues. DM