Parliament is now free to proceed with the process of the possible removal from office of Public Protector Busisiwe Mkhwebane. This after the ruling of the Cape Town High Court dismissing Mkhwebane’s application for an interim interdict while she challenges the constitutionality of the new rules adopted by Parliament for the removal of the head of a Chapter Nine institution.
Judge Vincent Saldanha has ruled that Mkhwebane had not made a clear and strong case for the Parliamentary processes to be suspended. his ruling, Judge Saldanha said he was satisfied with the arguments by Parliament that the Public Protector has several remedies available to her.
Even if she is dismissed but later wins her case against the constitutionality of the process to remove her, she could seek an order for reinstatement on the basis that she was removed through an unlawful process among others.
National Assembly Speaker Thandi Modise’s spokesperson, Moloto Mothapo, says the process to appoint a three-member panel of experts to make a preliminary assessment on the motion for the removal of the Public Protector is almost complete.
He says the Speaker will announce the names of panel members in due course. Another party to Mkhwebane’s application was the Democratic Alliance (DA). Its MP Glynnis Breytenbach says they are happy with the outcome.
“We are happy that the matter went in our favour. This opens the door for the Speaker in Parliament to carry on with the process now of setting up a committee to remove the Public Protector from office. It’s entirely her prerogative to do so now within her discretion and there is nothing that bars her from doing so. We look forward to that process being instituted.”
Mkhwebane says she will study the court ruling before deciding on the way forward. She argues, however, that the ruling seems to contradict a Constitutional Court judgment against herself in the case brought by Public Enterprises Minister Pravin Gordhan.
Speaking through her spokesperson, Oupa Segalwe, she says that court had found that not granting Gordhan interim relief would do irreparable harm to him.
“The Public Protector advanced a similar argument in the Western Cape High Court indicating that the interdict would not leave the National Assembly with any irreparable harm. Whereas she stood to suffer prejudice and irreparable harm if the process carried on while the review of the rules was under way. ”
The next phase of the case, which is Mkhwebane’s challenge of the process of making the rules that will be used to try her, was initially scheduled for last month but it looks more likely it will now only take place early in the new year.