A full Bench of the Western Cape High Court on Friday, 14 April, dismissed suspended Public Protector Busisiwe Mkhwebane’s application for chair Richard Dyantyi and Democratic Alliance (DA) MP Kevin Mileham to be recused.

Mkhwebane had complained that Mileham was “compromised” as he is married to DA MP Natasha Mazzone, who initiated the motion for the impeachment inquiry.

Justices Rosheni Allie, Kate Savage and Judy Cloete ruled they could not intervene in an ongoing parliamentary process. The committee was accountable to Parliament and not the public at large, they said. 

Mkhwebane had not shown the existence of a “grave injustice against her”, the court added, and she would also not suffer “irreversible harm” should the committee continue.

Where’s Dali?

Although the committee is due to reconvene on Tuesday, Mkhwebane is still without legal representation. Just who is going to foot her legal bill while the inquiry hurtles to its final destination remains unresolved.

Dyantyi has consistently spoken of “work being done behind the scenes” in this regard.

Advocate Dali Mpofu, meanwhile, has made no statements. Before terminating his services on 2 April, he reminded the committee that he was in “great demand” and his diary was filling up fast so everyone better get a move on.

Read more in Daily Maverick: Where art thou, Dali? A tough week of burning questions ahead for Mkhwebane

Mkhwebane, still muted, had to watch last week as evidence leaders – advocates Nazreen Bawa and Ncumisa Mayosi – took the committee through court rulings in relation to Mkhwebane’s now invalidated SARS “rogue unit” report.

Although Mkhwebane, led by Mpofu, has steadfastly held on to the argument that court rulings are mere “opinions”, Bawa and Mayosi took committee members through actual, binding court judgments. The Rule of Law, in other words. Right up to the apex court in most cases.

Dem Rogue bones

The bones still being picked over last week were the legitimacy of Mkhwebane’s possession of a classified 2014 Inspector-General Of Intelligence report, the fact that she withheld this from her court record and, worse, that she had based her investigation into Pravin Gordhan and SARS officials on the selfsame report.

Mkhwebane disregarded findings made by Judge Robert Nugent, who chaired a commission into SARS in 2018. He questioned why the establishment of the high-risk unit had been viewed as unlawful when she compiled her report.

Read more in Daily Maverick: Nugent Commission final report recommends criminal prosecution and far reaching changes to restore SARS

SARS, Nugent found, was entitled to collect intelligence for the purposes of tax collection/evasion.

“The conclusion we reach at the end of this inquiry is that there has been a massive failure of integrity and governance at SARS, and all else follows from that. What SARS was, and what it has become, is sufficient proof in itself that integrity and governance failed on a massive scale,” the judge said in 2018.

He recommended that Tom Moyane, appointed as SARS commissioner by Jacob Zuma in 2014, be criminally charged. 

Mkhwebane disregarded this, it seems, and relied instead on an opinion by Advocate Muzi Sikhakhane. Nugent remarked this had had “dire consequences” for SARS and those implicated.

Nugent had powers of subpoena and the commission’s report was reviewable, whereas Sikhakhane’s report was the opinion of a panel of three advocates and was not reviewable.

In a high court judgment setting aside Mkhwebane’s SARS report, the court said it had been puzzled by her decision not to consider the Nugent Commission’s findings during her investigation.

Tuesday will hopefully see more clarity with regard to Mkhwebane’s legal woes. DM