Public Protector Busisiwe Mkhwebane.

• The Western Cape High Court dismissed Public Protector Busisiwe Mkhwebane’s application to halt Parliament’s removal process.
• Mkhwebane did not meet the requirements for such an order, the court ruled.
• The Public Protector must pay the legal costs of the speaker and the DA, but no punitive costs order was granted against Mkhwebane.

Public Protector Busisiwe Mkhwebane’s application to halt Parliament’s removal proceedings against her was dismissed with costs in the Western Cape High Court on Friday.

The court battle began in February, after Mkhwebane filed an urgent application for an interdict to halt the process to remove her from office.

The process was initially set in motion by the National Assembly Speaker Thandi Modise’s approval of a DA motion. This, after the National Assembly approved rules for such a process, also called impeachment, in December.

Judge Vincent Saldanha ruled that there would be “serious prejudice to the public interest, coupled with the separation of powers harm to the National Assembly if the process does not ensue”.

Saldanha said the relief Mkhwebane sought would not only impact her position, but prevent the National Assembly from holding other Chapter 9 institution heads accountable.

“The applicant (Mkhwebane) has, in my view, failed to meet any of the requirements for interim relief,” read Saldanha’s judgment.

“Even if she had done so, I would have exercised my discretion in refusing such relief, given the severity of the charges that had been preferred against her and which have been based on trenchant findings by none higher than the Constitutional Court with regard to her conduct, her honesty and her methodology of investigation.”

Furthermore, Saldanha said the decision to start a process to impeach the head of a Chapter 9 institution was not taken lightly and was a “serious mechanism of accountability”.

“A court should not lightly interfere with such processes unless an applicant has demonstrated exceptional circumstances which, in my view, the applicant has failed to do.”

Judges Monde Samela and Elize Meyer concurred.

Saldanha ordered that the Public Protector foot the legal bill for Modise and the DA. He did not grant the DA’s request for a punitive costs order against Mkhwebane.

This judgment is only Part A of Mkhwebane’s application. In Part B, she is asking the court to declare the National Assembly’s rules for the removal of a Chapter 9 head unconstitutional and invalid.

Saldanha said that in the papers before the court, Mkhwebane made “neither a clear nor a strong case” for the relief sought in Part B. He said he was therefore satisfied that it was “just and equitable” not to halt Parliament’s process.

Part B will be heard in November.

On Thursday, the National Assembly Programming Committee heard that it could proceed with the removal process, pending the ruling, unless the court orders it not to.

Modise is in the process of appointing an independent three-person panel to determine whether there is a prima facie case for Mkhwebane’s removal.