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Public protector Busisiwe Mkhwebane. Picture: THAPELO MOREBUDI
Public protector Busisiwe Mkhwebane. Picture: THAPELO MOREBUDI

Public protector Busisiwe Mkhwebane will be applying to the Constitutional Court to rescind, or reverse, its judgment that cleared the path for her possible impeachment.

In a letter to parliament on Monday, her lawyers asked parliament to put its impeachment process on hold in the meantime, saying they hoped “sanity will prevail”.

The impeachment process was, according to a News24 report, expected to resume on Tuesday. It had previously been put on hold awaiting the Constitutional Court’s decision,

The court judgment this month found that the rules for the impeachment of the heads of chapter 9 institutions were unconstitutional in one respect. But, unlike the high court judgment before it, the Constitutional Court’s judgment did not affect parliament’s ability to press ahead with its process against Mkhwebane.

In the letter, Seanego Attorneys said that having studied the judgment Mkhwebane had instructed her lawyers to launch the rescission application. The application will be lodged in the next 10 to 15 days, said the letter.

The National Assembly had “previously and correctly adopted the sensible position” to suspend the process until litigation was finalised. “To change the decision in the face of the information contained in this letter would obviously be both unreasonable and irrational in the circumstances,” said the letter.

The letter said it was “our sincere hope that, in the spirit of co-operative governance between organs of state, sanity will prevail and the need to resort to unnecessary, costly and time-consuming parallel litigation will be avoided”.

This is the second time the public protector has asked the highest court to reverse its own judgment against her. In July 2021 she applied to rescind the Constitutional Court’s judgment that set aside her CR17 investigation and report as unlawful.

Her 2019 report found that President Cyril Ramaphosa had a duty to disclose the funders of his CR17 campaign, which saw him elected ANC president in 2017, and directed parliament to demand disclosure.

The CR17 report was firmly set aside by a majority of the highest court with choice words from judge Chris Jafta, who said: “The public protector, like all of us, is fallible and mistakes are to be expected in the course of the exercise of her powers. But what is troubling in this matter is the series of weighty errors, of which defy any characterisation of an innocent mistake.”

Judgment in the CR17 rescission application is pending.

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