Former Public Protector Busisiwe Mkhwebane. (Photo: Gallo Images / Brenton Geach) 
Represented by Advocate Dali Mpofu, Mkhwebane was dealt another body blow as the Supreme Court of Appeal (SCA) on Tuesday struck off the roll, with costs, her appeal against the Western Cape Division of the High Court’s dismissal of an application to remove the chair of the historic impeachment inquiry.
It is a further setback among Mkhwebane’s ongoing attempts to challenge her impeachment process while simultaneously leveraging the law in other matters, including an attempt to obtain a R10-million gratuity she claims she is due.
The Office of the Public Protector South Africa has challenged this, with Advocate Tembeka Ngcukaitobi arguing on its behalf in the Gauteng Division of the High Court in Pretoria in August that Mkhwebane was the only Public Protector to be impeached for misconduct and incompetence, and was not in the same position as previous incumbents of the office.
Acquiescing to Mkhwebane’s demand for payment would set “bad precedent” he argued.
‘Constitutional delinquency’
“What you have is a reward for constitutional delinquency. And this, I’m afraid, my Lord, is the big elephant in the room that this case, really what it is about, is asking the judge to be party to a reward for constitutional delinquency,” he told the court.
Ngcukaitobi argued that Mkhwebane did not meet the requirements for a gratuity payment because she had not left office as required by the Public Protector Act, but was removed on grounds of misconduct.
A ruling is yet to be made on the matter.
Read more: Paying Mkhwebane a R10m gratuity would reward ‘constitutional delinquency’, court hears
Mkhwebane currently serves as an EFF MP on the parliamentary committee for justice, which oversees the Office of the Public Protector.
Democratic Alliance spokesperson on Justice, Advocate Glynnis Breytenbach, on Tuesday said the ruling was “a victory for the rule of law and a reaffirmation of the importance of accountability in South Africa’s democratic institutions”.
She said the court’s judgment made it clear that Mkhwebane’s attempts to use the judicial system for personal interests after being lawfully removed from office was without merit.
Said Breytenbach: “We are particularly pleased that the court awarded costs against Ms Mkhwebane in her personal capacity, recognising that this frivolous litigation has wasted valuable resources, clogged the court rolls and wasted our courts’ precious time. It is critical that public officials are held accountable for their actions and that legal processes are not misused to obstruct justice”.
Last week Mkhwebane’s fellow impeachee, former Judge John Hlophe, who now leads the MK party in Parliament, has been interdicted from serving on the Judicial Service Commission.
The body which interviews judges has opted to continue without him, which has resulted in Hlophe, who is part of the Coalition-of-the-Implicated that has coagulated around former president Jacob Zuma, leader of MK, threatening legal action. DM