Suspended Public Protector Busisiwe Mkhwebane speaks to advocate Dali Mpofu over a tea break during the parliamentary inquiry into her fitness to hold office in Parliament, Cape Town, South Africa on 25 August 2022. (Photo: Leila Dougan) 
Five days have passed since the Western Cape high court ruled that Cyril Ramaphosa’s suspension of Public Protector Busisiwe Mkhwebane should be set aside as the decision may have been tainted by bias.
As Mkhwebane’s Section 194 impeachment inquiry rolled into its 28th day on Tuesday, her legal representative, Advocate Dali Mpofu, attempted to suspend or at least halt proceedings.
“We are not in a position to proceed,” he informed the committee adding “we are going to be doing an application for a postponement”.
Mpofu was clearly hoping to buy time. Down the road from Parliament and in the Western Cape high court, Mpofu is hoping a potential legal lacuna may open up when the case is heard this Friday 16, September.
Meanwhile, Mkhwebane called in sick and was not present at Tuesday’s hearing.
Never one to shy away from weekend work, as the inquiry has heard, Mkhwebane and her legal team on Saturday filed an application with the Western Cape high court to have its order confirmed regardless of appeals or challenges.
On Tuesday, before he was due to begin cross-examining a witness, Mpofu addressed the committee saying that as of 3pm on Friday, when the judgment was handed down by judges Lister Nuku, Matthew Francis and James Lekhuleni, to about 8pm, the PP had been reinstated.
Why 8pm? That is when the Democratic Alliance dropped off its challenge appealing directly to the Constitutional Court, an action which automatically pulled a legal brake on Mkhwebane’s rush back to the office.
Almost as soon as the high court had handed down its ruling on Friday Mkhwebane contacted acting PP, Kholeka Gcaleka, asking for access to the PPSA’s offices in Pretoria. Gcaleka stood firm, informing Mkhwebane that the Friday order “is not presently operative” and that Mkwebane remained suspended.
In the meantime, President Cyril Ramaphosa also filed papers on Sunday opposing Mkhwebane’s application and seeking direct access to appeal to the Constitutional Court.
The president, who is being investigated by the PP’s office for the possible breach of the ethics code related to a break-in and theft of foreign currency from his private reserve at Phala Phala, filed papers on Sunday opposing Mkhwebane’s application.
Everyone appeared to be joining in the legal jamboree, Mpofu told the committee on Tuesday.
“There are papers running up and down here. The ATM, UDM and PAC is also joining in, as is the acting Public Protector,” he said.
He added: “this is probably one of the biggest things to happen in the legal sphere, so it is quite understandable that so many people are joining in. It will make Nkandla look like a picnic.”
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Evidence leader Advocate Nazreen Bawa was keen to clear up “confusion” as to whether Mpofu was seeking a postponement only till Friday or indefinitely.
Mpofu’s request to postpone the inquiry was refused by Section 194 chair Qubudile Dyantyi, on Monday already. On Tuesday, the chair stood firm resulting in a heated to-and-fro between Mpofu who proclaimed to be “disappointed” in Dyantyi’s “attitude”. It was prejudicial to Mkhwebane, he insisted.
Mkhwebane, noted Dyantyi, had not sent a letter of apology and he thus regarded her as being “absent” to which Mpofu responded that the PP had taken ill and had been to the doctor and that a family member had informed him.
He later told the committee that if Dyantyi did not accept Mkhwebane’s “sick note” he would make this public.
Earlier, requesting Mpofu to respond to Bawa’s questions with regard to whether he sought a temporary or permanent postponement, Mpofu shot back that Dyantyi would “regret your stance, your day will come.”
Was this a threat, inquired Dyantyi, to which Mpofu replied characteristically, “Yes. It’s not a threat, it’s a promise”.
Mpofu was furious at being muted repeatedly by the chair.
Mpofu’s veiled threat soon became the subject of interjections by committee members with Annelie Lotriet, the DA’s chief whip expressing concern and that according to Parliament’s rules no MP may be threatened. The Freedom Front Plus’s Corne Mulder agreed as did the ANC’s deputy chief whip, Doris Dlakude.
The Economic Freedom Fighters, through MP Omphile Maotwe, rallied to Mkhwebane’s defence as did the African Transformation Movement’s Vuyo Zungula. Maotwe was later removed from the platform after unleashing a tirade at Dyantyi.
United Democratic Movement leader, Bantu Holomisa, called for “cool heads” and added enigmatically that there had been “developments” that would interrupt proceedings. He called for Mpofu’s application for a postponement to be granted.
The inquiry then resumed “normal business” of the cross-examination of Nelisiwe Thejane (nee Nkabinde), PP executive manager provincial investigation: inland who testified last week.
Thejane testified that Mkhwebane had been a hard taskmaster who had expected results and that she would “rush” investigation procedures. This had weakened staff morale and caused health problems.
Shortly after the witness had responded to questions, Dyantyi adjourned the hearing for the day.
A tweet by Mpofu around noon seemed to indicate a walk-out: “We have sadly left. In more than 35 years in the legal profession I have never heard of even the most hardened criminal being tried in his or her absence after producing a genuine reason & medical certificate…I suppose there’s always a first time Cry, the beloved country!”
We have sadly left..
In more than 35 years in the legal profession I have never heard of even the most hardened criminal being tried in his or her absence after producing a genuine reason & medical certificate…I suppose there’s always a first time
Cry,the beloved country!
— Dali Mpofu (@AdvDali_Mpofu) September 13, 2022
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