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ATM asks JSC to intervene over delayed ConCourt judgment on Mkhwebane suspension
'The importance and urgency of this matter cannot be stressed enough.'
ATM president Vuyo Zungula at the Debate on State Of The Nation (SONA) at Cape Town City Hall on 14 February 2022. Picture: Gallo Images/Die Burger/Jaco Marais
The African Transformation Movement (ATM) asked to the Judicial Service Commission (JSC) to intervene following delays on the judgment of Constitutional Court (ConCourt) relating Public Protector Busisiwe Mkhwebane’s suspension.
Months after arguments were heard in November 2022, the ConCourt has still not delivered its ruling on the matter, much to the dissatisfaction of Mkhwebane and some political parties.
‘Judicial delays’
In a letter to JSC, ATM president Vuyo Zungula expressed concern over the delayed ruling, saying the Superior Courts Act required judges to make an effort to hand down judgments within three months.
“It is also necessary to highlight the inconsistency in addressing judicial delays by the JSC, particularly in light of the recent suspension of two high court judges for similar delays,” he said in reference to the suspensions of Judges Tshifhiwa Maumela and Nomonde Mngqibisa-Thusi.
The JSC had recommended for the judges to temporarily step down from positions following complaints against the pair over their failure to deliver numerous reserved judgments.
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Zungula said it was “disconcerting” that no ConCourt justice has not faced any consequences despite Mkhwebane also laying an official complaint with the JSC about the delayed judgment in her case.
“The lack of uniform action in similar situations raises questions about the consistency and fairness of the decision-making process.
“One of the delayed judgments highlighted by the JSC which led to the suspension of the two judges was an eight-month delay, which is the exact same time-frame as the delay in the Mkhwebane matter.
“The importance and urgency of this matter cannot be stressed enough,” the ATM president continued.
‘National importance’
Zungula also said Mkhwebane’s case was of “national importance”, therefore, the matter needed to be brought to its finality.
“The Constitutional Court remains the last line of defence of the constitution and its institutions, including the Public Protector.
“Delaying this judgment is a departure from this principle and is extremely unfortunate. Hence, I’m writing to the commission for your urgent intervention,” he said.
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“We rely on the JSC to maintain the highest standards of judicial conduct and ensure equal treatment under the law.
“Therefore, I kindly request that the JSC provide an explanation for the inconsistency in addressing these delays between the two instances mentioned above, where some judges get suspended and others are spared, despite them having been accused of the same misconduct,” the letter further reads.
‘Justice denied’
Earlier this week, Mkhwebane said it was too late for her to return to office with her non-renewable term set to expire in October.
“Thanks for the correct sentiment, but I am on record as saying that since the suspension has now served its political purpose, I am no longer interested in that judgment.
“Whatever the outcome, the Constitution must have acted above politics. Maybe they must send it to law facilities for studies on justice delayed and denied,” she said in a tweet.
Mkhwebane was suspended by President Cyril Ramaphosa in June last year, a day after she announced that her office would investigate the president’s conduct regarding the Phala Phala farm scandal.
The suspended public protector approached the Western Cape High Court challenging her suspension from office, with the court ruling in her favour.
The same court, however, later reversed its 9 September ruling and dismissed Mkhwebane’s bid to be immediately reinstated to her position.
The full bench ruled that its order, delivered on 11 October, was subject to confirmation by the ConCourt.
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