Africa-Press – South-Africa. Public Protector Busisiwe Mkhwebane suffered another loss in the courts when the Western Cape High Court dismissed her application to set aside Section 194 Committee chairperson Qubudile Dyantyi’s decision not to recuse himself.
The committee is a parliamentary committee conducting an impeachment inquiry into Mkhwebane’s fitness for office and started with hearings in July.
In September, Mkhwebane brought an application to the committee for Dyantyi to recuse himself, as well as DA MP Kevin Mileham.
Mileham is the husband of former DA chief whip Natasha Mazzone, who brought the motion the National Assembly adopted to proceed with the inquiry into whether Mkhwebane misconducted herself or displayed incompetence.
Mkhwebane alleged Dyantyi had been biased against her and her legal team and allowed the process to be procedurally unfair, and that Mileham was conflicted.
Neither Dyantyi nor Mileham recused themselves, and as is her wont, Mkhwebane subsequently litigated.
The impeachment process continued despite Mkhwebane’s court application, as there was not a court order halting it.
Arguments were heard for the application in February and March.
Judgment was handed down on Thursday.
“The applicant [Mkhwebane] retains effective remedies which remain available to her once the committee has completed its work.
“She has not shown the existence of grave injustice or that any harm which have been suffered by her will be material and irreversible if the committee is permitted to proceed with its task,” read the judgment by a full bench consisting of judges Rosheni Allie, Judy Cloete and Kate Savage.
The court found it would not be appropriate to “permit a piecemeal review of proceedings”.
The judgment further read: “With no exceptional circumstances demonstrated, the balance of convenience favours a decision to dismiss the application brought by the applicant.”
The court found it was not necessary for it to determine whether the test for bias has been made out against Dyantyi and Mileham, or whether the issues Mkhwebane complained about had merit.
The court did not make a punitive costs order against Mkhwebane, but she must pay Dyantyi and the DA’s legal costs.
Mkhwebane will, however, have to pay out of her own pocket, as the Office of the Public Protector did not fund this litigation.
Mkhwebane is currently without legal representation before the committee, as the Office of the Public Protector indicated it could not continue to fund her legal bill, which burgeoned to R26 million, beyond 31 March.
Mkhwebane subsequently did not brief her legal team, led by advocate Dali Mpofu SC, who also represented her in this application, beyond this date and now insists the State must pay for her legal representation for the committee.
The committee had its last meeting last Wednesday, and it is set to resume in the coming days.
Mkhwebane’s term of office ends in October.
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