Bantu Holomisa supports position of Busisiwe Mkhwebane

UDM leader Bantu Holomisa has come out in support of the public protector in her legal battle to halt impeachment proceedings against her in parliament.

Holomisa and ATM leader Vuyolwethu Zungula have filed an affidavit supporting Busisiwe Mkhwebane’s position that the impeachment process should not proceed while she is applying for the Constitutional Court to reverse its own judgment on the constitutionality of impeachment rules.

In a unanimous judgment in February, the Constitutional Court cleared the way for the impeachment process to go ahead. However, Mkhwebane then applied to the Constitutional Court to rescind its own judgment.

She has again approached the Western Cape High Court for an interim interdict to prevent the impeachment process from going ahead in parliament while the matter is sub judice before the Constitutional Court. In the same case, she has challenged the president’s power to suspend her.

Speaker Nosiviwe Mapisa-Nqakula and the chair of parliament’s impeachment committee, Qubudile Dyantyi, have opposed Mkhwebane’s bid to put the brakes on the committee’s work.

Mapisa-Nqakula said the rescission application to the Constitutional Court was a “desperate (and legally impermissible) attempt” to relitigate a case she had already lost.

She said Mkhwebane was precluded from seeking an interim interdict that the committee’s work be suspended because the Western Cape High Court considered and decided this question in 2020.

In 2020, the Western Cape High Court refused to grant an interim interdict to Mkhwebane, pending her earlier challenge to the constitutionality of the impeachment rules. This challenge then went on appeal to the Constitutional Court, whose judgment she wants the highest court to rescind. 

However, Mkhwebane said in her current application it was “undeniable” that the merits pertaining to the constitutional validity of the process were “pending for determination” at the Constitutional Court. She referred to rule 89 of the rules of the National Assembly, which says no MP may reflect on the merits of a matter “on which a judicial decision of a court is pending”. The committee would be acting unlawfully to proceed, she said.

Holomisa, a member of the impeachment committee, said it would be “impossible” to conduct the inquiry without breaching the sub judice rule. He said the EFF and the ATM representatives on the committee had “sharply objected in that the rescission application was still under way”.

“They were unfortunately outvoted by the majority and therefore the incorrect and unlawful decision to go ahead towards the inquiry was taken,” said Holomisa.

In his affidavit Dyantyi said: “The deliberations of the section 194 committee will be about the misconduct and incompetence of advocate Mkhwebane alleged in the charges supporting the motion of Ms Mazzone MP [DA chief whip Natasha Mazzone]. Such issues do not arise in the rescission application pending before the [Constitutional Court] or in part B of the present application, and therefore there is no risk that rule 89 will be breached if the committee continues with its work.”

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