Public Protector Busisiwe Mkhwebane. Picture: Neil McCartney
Public Protector Busisiwe Mkhwebane’s lawyer, advocate Dali Mpofu on Wednesday defended the Public Protector’s latest application to reverse the rescission judgment against her, taking a dig at the “so-called Stalingrad police” who claim that this application was a delaying tactic.
The interdict hearing resumed in court on Wednesday in her bid to halt Parliament’s impeachment process against her.
The matter was back at the Western Cape High Court after it was postponed on 26 April due to an alleged leak in connection to Mkhwebane’s rescission application.
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Legal consultant Ismail Abramjee claimed that he had had it “on good authority” that the Constitutional Court (ConCourt) had decided to dismiss Mkhwebane’s application, in a leaked SMS sent to advocate Andrew Breitenbach, who is the lead senior counsel for National Assembly Speaker Nosiviwe Mapisa-Nqakula.
Mkhwebane had approached the ConCourt with a rescission application, seeking an order for the apex court to reverse its February ruling, which gave Parliament’s Ad Hoc Committee on the Section 194 Inquiry the green-light to proceed with the Public Protector’s impeachment.
Furthermore, Abramjee also claimed in the message that the judgment would be delivered on 29 April.
However, the judgment only came a week later on 6 May.
While Mkhwebane has since opened a criminal case against Abramjee, the Public Protector has filed another rescission application, in a bid to reverse the 6 May ruling.
Mpofu said they had prepared to challenge the rescission judgment if the ConCourt ruled against Mkhwebane.
“Even before Mr Abramjee came into the picture, we foreshowed that should the so-called urgent entertainment of the rescission if it happened, it would have been a rescindable error in its own right,” he said on Wednesday.
“We are confident to say Mr Abramjee is either a sangoma or there’s something more serious to it,” Mpofu continued to say.
Mpofu labeled Abramjee’s SMS as “the biggest scandal to ever hit our courts”.
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“The mere fact that the judgment is delayed by a week cannot, by any stretch of the imagination, be read to mean that what Abramjee was saying was not going to happen on the 29th if it had not been outed,” he said.
The advocate further made his argument citing Chief Justice Raymond Zondo’s SABC interview – which aired on 28 April – saying the judge gave three contradicting answers to the question of whether the ConCourt had made a decision regarding Mkhwebane’s rescission application.
“[The Chief Justice] was asked three times [on whether if] the decision has been made. He gave three different answers,” he said.
Mpofu suggested that the leaked SMS was meant to influence the judges of the Western Cape High Court and “advantage one party over the other”.
“What should concern you is a situation where there is a possibility that somebody in the Constitutional Court leaked the judgement to influence [this court]. Not out of fun or as joyride, but to influence the three justices sitting here.
“If that was not the case that SMS would have not been sent to advocate Breytenbach… it would have been sent to me or Mr [Thabani] Masuku or whoever. It is a deliberate act of criminality and corruption,” he said.
ALSO READ: Parliament to proceed with Mkhwebane’s impeachment process amid SMS scandal
Earlier in the proceedings, Mpofu argued that Mkhwebane’s possible suspension from her office pending the impeachment inquiry would be “punitive” and impact her “dignity”.
“The suspension of anybody, including Advocate Mkhwebane or a judge, or a president or whatever is on its own punitive,” he said.
He said Mkhwebane was being “victimised by the most powerful”, adding that the Public Protector was “just a lonesome woman trying to do her job”.
Mpofu also told the court that Mkhwebane’s interdict hearing should be suspended “where there is a possibility” that a ruling may be reversed in light of the second rescission application.
Mkhwebane had filed her interdict application at the court in two parts.
In part A, the Public Protector seeks an order forcing Mapisa-Nqakula to halt the impeachment process as well as preventing President Cyril Ramaphosa from suspending her, pending her new rescission application.
While in part B, the Public Protector wants Mapisa-Nqakula’s decision to send a letter to Ramaphosa declared “unconstitutional” and “invalid”.
The Speaker had informed the president in the letter that Parliament’s Ad Hoc Committee on the Section 194 Inquiry would proceed with the impeachment.
Ramaphosa then wrote to Mkhwebane asking her to explain why he should not suspend her and gave her 10 days to respond.
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