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Parliament, Thursday 13 April 2023 – A full bench of the Western Cape Division of the SA High Court has today dismissed Public Protector Adv Busisiwe Mkhwebane’s application to review the Section 194(1) Committee’s refusal to recuse its Chairperson, Mr Qubudile Richard Dyantyi, and committee member Mr Kevin Mileham.

Adv Mkhwebane approached the High Court last year, on an urgent basis, seeking – amongst others - the review of the Committee’s decisions on 17 October 2022 to dismiss her application for the recusal of the Committee Chairperson and Mr Mileham; the Committee’s decision on 27 October 2022 to dismiss her application of the adjournment and continuation of the Committee proceedings; and the Committee’s decision made on or before 17 October 2022 not to summon, subpoena and/or recall certain relevant witnesses, including the President, to testify at the enquiry.

In its order released today, the Court dismissed Adv Mkhwebane’s application with costs – including the costs of the counsel for the Committee Chairperson, Mr Mileham and the Democratic Alliance as the fifth respondents.

Adv Mkhwebane had sought the recusal of the Committee Chairperson on at least twelve grounds which included that he had unduly favoured and colluded with evidence leaders; he had made utterances which she contended illustrated that he had prejudged the issues; he had presented ‘false facts in the public domain’ during a media interview; the Committee had unilaterally amended the directives in relation to the treatment of witnesses; and that the Chairperson’s had refused to subpoena President Cyril Ramaphosa on the basis of relevance.

The recusal of Mr Kevin Mileham was sought on the basis that he is married to Ms Natasha Mazzone, who submitted the motion which led to the establishment of the enquiry, and that Mr Mileham has displayed a ‘distinctively hostile attitude’ and had posted tweets critical of the applicant’s counsel.

Adv Mkhwebane had also submitted that the refusal to adjourn the proceedings of the Committee on 27 and 28 October 2022 and again on 1 November 2022 constituted unlawful conduct and was in contempt of the decision of the Constitutional Court in Speaker of the National Assembly v Public Protector and Others in which it found that a legal practitioner or other expert of her choice assisting her is allowed to participate in the Committee.

In its evaluation, the Court stated that the separation of powers doctrine is not to be trammelled lightly and for flimsy reasons. It exists to ensure that each arm of government concerns itself with its legislative and constitutional mandate without undue interference and without being prescriptive to others.

The Court further stated that Section 237 of the Constitution expressly requires that all constitutional obligations must be performed diligently and without delay. The National Assembly is required to hold the Public Protector accountable by scrutinising a motion for her removal and to do so diligently and without delay.

The National Assembly hold the power to determine and control their own internal arrangement, proceedings and procedures which include those in relation to the Section 194 Committee.

The Court held that it is only ‘in rare cases where grave injustice might occur, through justice not being attained by other means, that a court will entertain an application for review before the conclusion of such proceedings. It therefore found Adv Mkhwebane’s review application premature.

It further held that it would not be appropriate for it to permit a piecemeal review of proceedings as no exceptional circumstances were demonstrated and that the balance of convenience favours a decision to dismiss the application brought by Adv Mkhwebane.

In addition to finding the review of the matter is premature, the Court also held that any review of the process which may be brought after the conclusion of the process would be in terms of the principle of legality and not in terms of the Promotion of Administrative Justice Act as relied upon by the Public Protector.


Enquiries: Moloto Mothapo