THREAD: The Western Cape High Court today heard arguments on Public Protector AdvBMkhwebane's two-part application against the National Assembly process to remove her from office in terms of section 194 of the Constitution.
The matter returned to court following a postponement in April after Mr Ismail Abramjee sent an SMS to Adv. Andrew Breitenbach SC, claiming to "have it on very good authority" that the Constitutional Court was going to rule against the PP in a separate but related case.
Adv. Breitenbach SC represents Speaker of the National Assembly and the Chairperson of the Parliamentary Committee on the Section 194 process in the proceedings before High Court’s Justices Nathan Erasmus, Mokgoatji Dolamo and Derek Wille.
The crux of Mr Abramjee's text message was that a decision of the Constitutional Court, which had not been communicated to the parties, had been leaked to him. Multiple investigations, including by the police and the Chief Justice have since been launched into the matter.
In Part A of her application, the PP seeks, among other things, an interim interdict prohibiting National Assembly Speaker and the Section 194 Committee from proceeding with the removal process and barring the President from suspending her.
These must, under this part of the application, be held in abeyance pending the court's determination of Part B, in terms of which the PP seeks a declaratory order on the constitutionality, validity and rationality of the actions of the Speaker, President and the committee.
For the better part of the day, Adv. Dali Mpofu SC, on behalf of the PP, kicked-off his argument by disposing of the claim that the Constitutional Court's order, dismissing the Public Protector's recent rescission application cannot itself be rescinded.
Adv. Mpofu SC explained that, under Rule 42(1) of the Uniform Rules of Court, the apex court may rescind the order it made in respect of the previous rescission application just as an outcome of an appeal application may itself be appealed to one superior court after another.
He also dealt with the argument that the unlikely suspension of the PP would not be punitive but precautionary merely because, in the event of such an improbable step, she would retain all her benefits.
Quoting from three authorities of the High Court, the Supreme Court of Appeal and the Constitutional Court, Adv. Mpofu SC argued that suspension is, in fact, punitive as it deals a blow to the suspended person's reputation and dignity, among other factors.
Turning to the disputed conflict of interest arising out of the President participation is the process as the suspending authority, Adv. Mpofu SC argued that the President ought to be held to his own admission that he is, in fact, conflicted.
The President's admission is contained in an affidavit he filed in proceedings before the same court in the earlier days of the case. He was referring to litigation that was pending between him and the PP at the time pertaining to the BOSASA/CR17 case.
The President had further indicated that he would rather defer the role of effecting the suspension to an untainted member of his Cabinet.
His admission aside, the President’s being the subject of multiple investigations by the PP renders him conflicted.
These investigations relate to his utterances in the leaked audio recording of the statement he made during the ANC NEC meeting, the alleged unlawful use of a state jet for a trip to Zimbabwe and allegations of judicial capture.
Regarding the decision of the Section 194 Committee Chairperson to proceed with the process on the strength of the Constitutional Court's dismissal of the PP’s rescission application, Adv. Mpofu SC argued that the Chairperson acted unlawfully.
The Chairperson ought to have awaited a go-ahead from the Speaker.
Adv. Mpofu SC explained that, in proceeding without hearing from the Speaker, the Chairperson, who, unlike the Speaker, was not a party in the case that was before the Constitutional Court, exercised powers that had not been conferred on him.
The case continues tomorrow when Adv. Mpofu is expected to reply to the submissions to be made on behalf of the Speaker, the Section 194 Committee Chairperson and the sponsors of the motion which spawned the Section 194 process, the Democratic Alliance.
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