A plethora of litigation – ongoing and threatened – swirls around Ombudsperson Busisiwe Mkhwebane and the Section 194 investigation into her impeachment that dates back to February 2020. Constitutional Court which upheld the integrity of parliamentary processes toward the impeachment inquiry, a challenge to the presidential prerogative to suspend it pending the impeachment process, and to bar the proceedings now that the investigative committee of the Section 194 is ongoing.
Time is running out – in mid-October 2023, Mkhwebane’s non-renewable seven-year term will end.
In 2020, Mkhwebane failed to ban Parliament to proceed after the establishment of the Impeachment Inquiry Commission under Section 194 in April of that year. The Western Cape High Court July 2021 judgment against parliamentary impeachment rules stopped this process — until the unanimous judgment of the Constitutional Court on February 4 confirmed the integrity of the parliamentary process so far.
Tuesday’s Article 194 committee decided, as the chairman, ANC MP Qubudile Dyantyi concluded, “There are no legal impediments to us proceeding…”
The ANC agreed, as did DA MP Annelie Lotriet and Freedom Front Plus Whip Corn Leaderstar Mulder, who added that a costs order should be considered against the Public Protector for using public funds to litigate.
Not the African Transformation Movement (ATM) or the EFF. Both cited the Ombudsman’s March 11 quashing motion against the Constitutional Court’s February 4 judgment upholding the integrity of the parliamentary impeachment process so far.
“If we want this process to be a respectable process and not be perceived as pursuing a certain agenda…the most acceptable thing to do is to give the Constitutional Court process a chance to continue, in the hope that the Constitutional Court will resolve this issue. quick. We’re really in no rush,” EFF chief Julius Malema said.
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ATM chief Vuyolwethu Zungula has previously invoked the sub judice rule, long held to be invalid in various court cases, to argue that parliament could not discuss the issue of removal of the Public Protector due to pending court cases.
Zungula finds himself in the thick of politics over his no-confidence motion against President Cyril Ramaphosa scheduled for Wednesday. Having lost the legal battle for a secret ballot on Monday, the party had asked for the motion to be postponed.
On Tuesday, National Assembly Speaker Nosiviwe Mapisa-Nqakula said only the programming committee could decide on a postponement. However, this committee only meets again on Thursday mornings, its traditional weekly time slot.
Indeed, it left the ATM in a dilemma of having to either accept an open vote even as it approaches the courts for a secret ballot, or withdraw the motion of no confidence as the sponsor of that motion.
In an unprecedented move, the ATM informed the president that it “will therefore not participate in the motion of March 30, 2022, if the president refuses to defer the motion as requested” in correspondence seen by Daily Maverick.
The implications of this will play out in the House on Wednesdayalongside the debate on the unprecedented DA motion of no confidence in the Cabinet.
Tuesday’s inquest under Section 194 noted objections from the EFF and ATM. And he proceeded with the formal appointment of the evidence leaders, lawyers Nazreen Bawa SC and Ncumisa Mayosi, since nothing prevented the committee from starting its work which a program sees finished on September 21, including hearings public from May 4 and responses. of Mkhwebane and his lawyers for three days from May 31.
“We could be banned in the next few hours and days… At the moment there is no ban… If the application is submitted, after evaluation, Parliament will have to decide whether to go ahead with it. oppose or not,” parliamentary legal adviser Siviwe Njikela told MPs. .
Parliament opposes Mkhwebane’s petition to the Constitutional Court to quash the February 4 unanimous judgment which ruled that a judge could be part of the independent panel assessing whether there were grounds for a proceeding impeachment and guaranteed full legal representation, rather than the legal assistance contemplated, at such a time. procedure.
Late Tuesday, it was unclear when Mkhwebane would file a restraining application against the investigative proceeding under Section 194 which the program said would now give him until April 30 to respond to evidence before the hearing. investigation.
“The Public Protector will have no choice but to take legal action to prohibit both the work of the committee and the suspension envisaged”, replied by SMS his spokesperson, Oupa Segalwe, to a request from comments.
“The Québec Ombudsman wrote to the president telling him why he cannot suspend her, namely her conflict of interest. It reserves the right to provide further reasons to the competent suspension authority once this matter has been decided by a court. »
This would mean that there would be no steps towards a possible suspension until the court has made a decision. But it was unclear exactly when Mkhwebane would file the court papers against any suspension.
Instead, it appears that different processes – parliamentary and presidential – are being confused by Mkhwebane’s lawyers, Seanego Attorneys, in a letter sent to Dyantyi and seen by Daily maverick.
“As you may know, through their legal representatives, the Public Protector, the President and the President have reached an agreement in principle that the urgent request… [over possible suspension] will be scheduled for a hearing before a plenary court of three judges on April 25 and/or 26…”, specify the lawyers of the Québec Ombudsman.
“Pending the outcome of said request, the President has agreed to impose a moratorium on the proposed suspension process until the court decides whether or not he is the legal suspension authority in the circumstances that prevail.”
Parliament spokesman Moloto Mothapo said Daily Maverick the President was not party to any agreement claimed by Mkhwebane’s lawyers.
“The prerogative to suspend or not to suspend the Québec Ombudsman belongs solely to the President. Parliament has no role to play in this. This is what we officially communicated to the Québec Ombudsman’s lawyers to clear up any confusion.
Presidential spokesman Tyrone Seale confirmed in a text message to Daily Maverick Mkhwebane’s suspension review process is still ongoing.
“The President has given the Ombudsman the undertaking that the President is willing to consider agreeing to a timetable regulating further conduct in this matter, provided that the Ombudsman files a petition to court by on March 31, 2022 and that the case be heard in court at the latest. than April 26.
On March 17, President Cyril Ramaphosa wrote to Mkhwebane asking for reasons why she should not be suspended, while the Public Protector requested that the letter be withdrawn given that the president was in conflict and could not. not suspend it.
The timeline is important. The presidential letter came eight days after the Constitutional Court rejected Mkhwebane’s quashing request following the court’s July 2021 ruling quashing as invalid his report on the funding of the CR17 campaign for the presidency of the ruling ANC.
While Section 194(3)(a) states that the President “may suspend a person from office at any time after the commencement of the work of a committee of the National Assembly for the impeachment of such person”, Mkhwebane in his reaction claimed that Ramaphosa remained conflicted.
When Mkhwebane refers to the Ramaphosa conflict, it refers to his investigation of a complaint about a leaked audio clip it had also been taken to parliament’s public spending watchdog, the Standing Committee on Public Accounts (Scopa), where ANC MPs refused any further action.
This was after Ramaphosa wrote to Scopa saying his comments to the ANC’s National Executive Committee that money “often from state and public resources” was being used for the campaign was “based on allegations already in the public domain and rumors circulating within the organization and society at large”. ”.
On Tuesday, the s. 194 inquiry was made clear that any action to suspend the Ombudsman was the prerogative of the president and that Parliament opposed the quashing order because “we believe that there is no merit in this case”.
Or as the state attorney acting for the President told the Québec Ombudsman in correspondence seen by daily maverick, of March 22: “Your client is not entitled to ask to challenge, by way of an action for annulment, the points that she lost in the main proceedings.
Dubbed a ‘letter festival’, the various letters invoking litigation appear to have put the Section 194 Inquiry on the brink of public discussion of what was called ‘strategy’ .
And that signals potentially tricky disputes steeped in politics. DM