IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE DIVISION, CAPE TOWN

Case No.:

THE PUBLIC PROTECTOR OF SA Applicant

and

THE SPEAKER OF THE NATIONAL ASSEMBLY First Respondent

THE CHAIRPERSON OF THE SECTION 194 COMMITTEE Second Respondent

THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Third Respondent

ALL POLITICAL PARTIES REPRESENTED IN

THE NATIONAL ASSEMBLY Fourth to Seventeenth Respondents

FIFTH RESPONDENT’S HEADS OF ARGUMENT

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TABLE OF CONTENTS

I INTRODUCTION............................................................................................................ 3

II ACCOUNTABILITY ....................................................................................................... 5

III NO BASIS FOR THE RELIEF AGAINST PARLIAMENT ............................................. 11

No basis to suspend pending rescission .................................................................. 12
The committee will not violate rule 89 ...................................................................... 14
No other basis for relief ........................................................................................... 16
No prima facie right or prospects of success ................................................ 17
Irreparable harm and alternative remedy ..................................................... 19
Balance of convenience ............................................................................... 20

IV NO BASIS FOR THE RELIEF AGAINST THE PRESIDENT........................................ 21

The s 194 process has started ................................................................................ 22
In any event, the President is not conflicted ............................................................. 28
The standard................................................................................................ 28
No conflict .................................................................................................... 31
No basis for an interdict ........................................................................................... 36
No prima facie right ...................................................................................... 36
No irreparable harm ..................................................................................... 38
Alternative remedy ....................................................................................... 40
Balance of Convenience .............................................................................. 41

V COSTS ........................................................................................................................ 43
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I INTRODUCTION

1 This is an extraordinary application to interdict the exercise of core executive and

legislative functions. It is brought with one motive only – for the Applicant (Adv

Mkhwebane) to avoid processes of accountability for her conduct. While the

application is brought in the name of the Public Protector, it is openly designed

to protect the interests of the incumbent, not the Office.

2 Adv Mkhwebane has been repeatedly held by the Courts to be dishonest and

incompetent. Instead of seeking to defend herself in the National Assembly, she

has tried and is trying every trick in the book to avoid accounting for her conduct.

Her plan appears to be to delay the moment of reckoning until her term expires.

She will adopt every legal manoeuvre – plausible or implausible – to avoid

accountability.

3 This application falls in the category of implausible legal manoeuvres.

4 Adv Mkhwebane asks this Court to prevent the NA from continuing with its

process to decide whether to remove her from office.

4.1 The only real basis she advances is that she has lodged a recission

application in the Constitutional Court. But that application cannot

remotely achieve that.

4.2 It does not suspend the Constitutional Court’s order. This Court cannot

suspend the Constitutional Court’s order. And suspending the High

Court order will not prevent NA from acting. Even if this Court could

come her aid, it will not do so because her rescission application is

hopeless, and she will suffer no injustice if the NA continues her work.
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4.3 So there is simply no legal way for Adv Mkhwebane to halt the process

in the NA.

5 Her attack on the President is equally implausible.

5.1 Adv Mkhwebane seeks to prevent the President from even deciding

whether to suspend her. Tellingly, she never enters into the merits of

whether she should be suspended – because she obviously should be.

Instead, she says the decision is being taken too soon, and by the

wrong person.

5.2 Her claim that the s 194 Committee has not started its work is patently

inconsistent with the purpose of that provision. Adv Mkhwebane seeks

to subordinate the public good the provision is supposed to serve to

her own personal interest in avoiding accountability for as long as

possible. Her attempt must fail.

5.3 The President is not conflicted merely because the Office of the Public

Protector is considering complaints against him. Suspending Adv

Mkhwebane will not make the complaints go away, nor is there any

evidence that it will affect the outcome of the complaints. No

reasonable observer would reasonably fear the President was biased.

5.4 Even if there was some merit to the claims, they should be adjudicated

if and when the President acts. Adv Mkhwebane is not entitled to

prevent the President from acting at all, which is what she is trying to

do.
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6 Accordingly, the DA will ask this Court to dismiss this application. Because Adv

Mkhwebane is trying to use state funds to pursue her personal interests, the DA

will ask this court to order Adv Mkhwebane to pay the costs personally. In

addition, she should be prohibited from using state funds to pay her own legal

representatives.

7 This affidavit is structured as follows:

7.1 Part II elaborates on the core foundational value that should guide this

Court – accountability;

7.2 Part III explains why Adv Mkhwebane is not entitled to halt the work of

Parliament;

7.3 Part III demonstrates Adv Mkhwebane cannot prevent the President

from deciding whether to suspend her; and

7.4 Part IV justifies the punitive costs awards against Adv Mkhwebane.

8 We are mindful that Parliament and the President are also opposing this

application and therefore try to focus on the decisive arguments. If we do not

repeat a submission advanced in the Answering Affidavit, that should not be

interpreted as abandoning the point.

II ACCOUNTABILITY

9 The Constitution makes “accountability” a founding value of our Republic.

Accountability requires that there are consequences for actions. It also requires
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that the various actors within our constitutional democracy hold each other to

account. No one branch or institution is supreme, and no incumbent is immune.

10 That is why “checks and balances to ensure accountability enjoy pre eminence

in our governance system.” 1 Those checks and balances are “designed to ensure

that the trappings or prestige of high office do not defocus or derail the

repositories of the people’s power from their core mandate or errand.” 2

11 While Chapter Nine Institutions perform a vital role in holding the executive

branch to account, they must also be accountable. The Constitutional Court

recently explained the need for even the Public Protector to be held accountable:

Society has always been concerned about the accountability of persons or

institutions who operate the levers of power. In recognising this, our
Constitution provides for state institutions that are mandated with the task of
supporting our constitutional democracy. But all powers have limits, and
even the officers employed to support accountability must be held
accountable in a state that propagates accountability and governance based
on the will of the people. 3

12 Independence and accountability have to go hand in hand. Independence

without accountability is a licence for abuse of power. The Constitutional Court

recognised in Glenister II that “adequate independence does not require

insulation from political accountability. In the modern polis, that would be

1 United Democratic Movement v Speaker of the National Assembly and Others [2017] ZACC 21; 2017 (8) BCLR
1061 (CC); 2017 (5) SA 300 (CC) at paras 7
2 Ibid at para 8.
3 Speaker of the National Assembly v Public Protector and Others; Democratic Alliance v Public Protector and
Others [2022] ZACC 1 at para 1.
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impossible. And it would be averse to our uniquely South African constitutional

structure.”4

13 The Constitution provides that Chapter Nine institutions are ultimately

accountable to Parliament. The Constitution grants the National Assembly the

power to remove the Public Protector from office. When the Constitution was

certified, the Constitutional Court held that, to protect the Public Protector’s

independence, a simple majority vote was not enough. 5 Now, a two-thirds

majority is needed. But the power is still granted to the NA as the representatives

of the people.

14 For that power to be meaningful, it must be exercised “diligently and without

delay” as s 237 of the Constitution demands. If the National Assembly delayed

in considering serious concerns of misconduct, incompetence or incapacity, it

would fail to perform its task of holding the Public Protector to account. Again,

the Constitutional Court has confirmed that delaying impeachment proceedings

“does not accord with the public interest in the finalisation of the important issues

raised in this matter.”6 The Court recognised that if courts allow impeachment

proceedings to be delayed until an incumbent’s term of office ends, “[t]he

administration of justice runs the risk of being brought into disrepute”. 7

15 This means that, when credible claims of misconduct, incompetence or

incapacity are brought to the National Assembly, they must be dealt with

4 Glenister v President of the Republic of South Africa and Others [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011
(7) BCLR 651 (CC) at para 216.
5 Certification of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 26; 1996 (4) SA 744 (CC);
1996 (10) BCLR 1253 (CC) at paras 161-3.
6 Speaker v PP at para 37
7 Ibid.
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expeditiously. It serves no institution’s interest to delay proceedings. The NA’s

reputation will be undermined as it will be seen as inefficient and ineffective. The

Public Protector will be undermined because there will be reasonable concerns

that the incumbent is not fit for office. The longer the process takes, the more

trust in our vital democratic institutions is eroded. Attempts to delay or derail

impeachment proceedings can only be motivated by selfish private ends, not by

a desire to serve the constitutional good.

16 This case needs to be seen against that background.

17 Adv Mkhwebane was appointed in November 2016. Her seven-year term expires

next year. The first court judgment that questioned whether she was fit for office

was delivered less than a year later, in August 2017. 8 Since then the DA has

been trying to get Parliament to decide whether Adv Mkhwebane is fit for office.

Only when the Constitutional Court confirmed the findings of dishonesty and

incompetence against Adv Mkhwebane in 2019 9 was the NA willing to act.

18 Since then, Adv Mkhwebane has done everything in her power to delay a

determination of whether she should be removed from office. And she has

succeeded. Nearly three years later, the NA is still busy with proceedings for her

removal. All that time Adv Mkhwebane has remained in office. She has continued

to deliver reports, which continue to be routinely set aside by the Courts. And

she has accumulated even more judicial criticism. Most recently the

Constitutional Court held that she failed to investigate the President with an “open

8 South African Reserve Bank v Public Protector and Others [2017] ZAGPPHC 443; [2017] 4 All SA 269 (GP);
2017 (6) SA 198 (GP).
9 Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (9) BCLR 1113 (CC); 2019 (6) SA 253
(CC)
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and enquiring mind” and “made findings that were not supported by the facts and

it appears that she was “unduly suspicious” of the person she was

investigating. Consequently, the investigation was improperly conducted.” 10

19 But finally, once the Constitutional Court dismissed almost all her challenges to

the s 194 Rules, it looked like Adv Mkhwebane would finally have to face the

music of an impeachment inquiry and possible suspension. But Adv Mkhwebane

was not done. Instead of accepting the judgment of the apex court, she brought

an appeal disguised as a rescission. That application in itself undermines the

legitimacy of the Constitutional Court. It sends the message that its judgments

are not final, need not be respected, and can be circumvented (or at least

postponed) through the device of a rescission application. As we detail below,

there is plainly no merit at all to the rescission application. It is an abusive

delaying tactic, nothing more.

20 Adv Mkhwebane then sought to leverage her abuse of the Constitutional Court

to delay having to explain her conduct to Parliament. She argued that the s 194

Committee could not proceed with its work until her rescission application was

complete. Luckily, the Speaker and the Chairperson were not duped by her

baseless threats, and committed to doing their constitutional duty to hold her to

account. The Committee has started its proceedings.

21 But Adv Mkhwebane had another fire to fight. The President had – quite properly

– written to her saying he was considering suspending her under s 194(3)(a) of

the Constitution and asking her to make representations. She not only had to

10 Public Protector and Others v President of the Republic of South Africa and Others [2021] ZACC 19; 2021 (9)
BCLR 929 (CC); 2021 (6) SA 37 (CC) at para 140.
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delay the impeachment hearing, she had to stay in office for as long as possible.

As long as she remains in office, she can abuse public funds to fight her personal

battles. As soon as she is suspended, the tap that funds her profligate litigation

will be cut off and she will have to herself bear the costs of abusing the court

system.

22 So Adv Mkhwebane sought to dissuade the President from acting. She claims

that he is conflicted because of an investigation long finalized, and litigation that

has ended, and because of pending complaints her office is addressing. And she

argued that, even though the s 194 Committee was meeting regularly and

actively preparing for hearings, it had not started its proceedings. The President

was – rightly – unpersuaded by these legal mirages. He refused to step aside.

23 He did, however, give the Public Protector a small and undeserved victory. He

agreed to delay his decision whether to suspend her so that she could bring this

application to challenge his right to do so, and the s 194 Committee’s right to

proceed with the impeachment enquiry.

24 This Court now has to consider an application that seeks to prevent organs of

state from even taking decisions, or exercising powers, specifically assigned to

them by the Constitution. It is hardly necessary to remind the Court that the

separation of powers requires it can only interdict the exercise of state power in

the “clearest of cases”. 11 Preventing the exercise of legislative or executive

power treads deep into the heartland of those branches’ authority. As was made

clear by the Constitutional Court’s OUTA decision, it is one thing to review a

11 National Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18; 2012 (6) SA
223 (CC); 2012 (11) BCLR 1148 (CC)
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decision after it has been taken. It is quite another to prevent the other branches

from even exercising their powers.

25 Yet that is what Adv Mkhwebane seeks. She wants to stop the process dead in

its tracks, so she can pursue a baseless review, premised on a baseless

rescission. The only goal here is to try and prevent ever having to explain her

conduct to the s 194 Committee. If she can secure interim relief here, she will

buy herself months or years of further delay. She may even delay the process to

the end of her term.

26 This Court should not countenance this type of conduct. For all the reasons we

give below, Adv Mkhwebane’s legal arguments are without any merit. But the

case also needs to be understood against this tapestry of anti-accountability.

27 The role of this Court is not to protect Adv Mkhwebane from Parliament and the

President, it is to allow Parliament and the President to do their job, and to protect

the public from the incumbent Public Protector.

III NO BASIS FOR THE RELIEF AGAINST PARLIAMENT

28 The case against the Speaker and the Chairperson rests on two substantive legs:

28.1 Adv Mkhwebane’s pending rescission application prevents them from

acting; and

28.2 Rule 89 of the NA Rules prevents the Committee from acting while the

rescission application is pending.

29 Neither argument has any merit at all:

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29.1 A rescission application is not a “Get out of Jail Free Card” that

automatically suspends the operation of an order. It has no effect at all

on the effect or execution of an order.

29.2 Rule 89 does not prohibit the s 194 Committee from doing its work. The

Committee will not “reflect upon” any pending case. And the rule is

meant to regulate members’ individual conduct, not obstruct the

functioning of committees.

30 If these substantive legs fall, there is little left of the case against Parliament. The

Public Protector fails to identify any right that will be affected, or any substantive

injustice she will face if the process continues.

No basis to suspend pending rescission

31 The law is crystal clear that the mere launching of an application for rescission

“does not automatically suspend” the operation of the underlying order. 12 That

was the conclusion of:

31.1 Meyer J in Erstwhile Tenants; 13 of

31.2 Legodi JP in Pine Glow Investments; 14 of

31.3 Mudau J in Peach v Kudjoe; 15

12 D Van Loggerenberg Erasmus Superior Court Practice (RS16, 2021) Vol 2, D1-604.
13 Erstwhile Tenants of Williston Court and Others v Lewray Investments (Pty) Ltd and Another 2016 (6) SA 466
(GJ).
14 Pine Glow Investments (Pty) Ltd And Others v Brick-On-Brick Property And Others 2019 (4) SA 75 (MN) at
para 11.
15 Peach v Kudjoe and Another [2018] ZAGPPHC 291.
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31.4 Lowe J in Hlumisa Technologies; 16 and

31.5 Most recently, Gilbert AJ in Van den Bos. 17

32 The contrary conclusions in two earlier cases 18 are clearly wrong for the reasons

set out and repeatedly adopted by these five judges:

32.1 It is inconsistent with Rule 45A and s 18 of the Superior Courts Act.

32.2 Automatic suspension would “would result in the absurdity that the filing

of any unmeritorious application for rescission could foil the operation

and execution of a decision which is the subject of such application”. 19

33 To obtain relief, Adv Mkhwebane must establish either the requirements for an

interim interdict, or justify relief under Rule 45A. We show why she has failed to

meet those requirements below.

34 Indeed, even if Adv Mkhwebane could somehow notionally meet the

requirements of Rule 45A (which she cannot), that would not help her.

35 Rule 45A reads: “The court may, on application, suspend the operation and

execution of any order for such period as it may deem fit”.

36 This Court only has the power to suspend the operation of its own order. It

obviously lacks the jurisdiction to suspend an order of the Constitutional Court.

16 Hlumisa Technologies And Another v Nedbank Ltd And Others 2020 (4) SA 553 (ECG) at paras 14-8.
17 Van Den Bos No v Mohloki And Others 2022 (2) SA 616 (GJ).
18 Khoza and Others v Body Corporate of Ella Court 2014 (2) SA 112 (GSJ); Peniel Developments (Pty) Ltd and
Another v Pietersen and Others 2014 (2) SA 503 (GJ); [2014] 2 All SA 219 (GJ).
19 Erstwhile Tenants at para 19.
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And that is the order which dismissed all but one the of Adv Mkhwebane’s many

challenges.

The committee will not violate rule 89

37 Rule 89 of the National Assembly Rules reads: “No member may reflect upon

the merits of any matter on which a judicial decision in a court of law is pending.”

Adv Mkhwebane argued in her founding affidavit that this rule precludes the s

194 Committee from proceeding because of her pending rescission application.

She seems to have largely abandoned the argument in her heads. But it remains

necessary to address it. The fact that it was raised at all also shows the straws

Adv Mkhwebane is willing to grasp to avoid accountability.

38 This submission has no merit at all because:

38.1 The Committee will not “reflect upon” pending court proceedings;

38.2 The Rules is not intended to preclude the s 194 Committee from acting;

and

38.3 The rule applies to members’ conduct, not NA structures.

39 First, the s 194 Committee need not and should not enter into the merits of the

rescission application. To the contrary, it has made it clear that it intends to

proceed on the basis that the Constitutional Court’s order is final. Accordingly,

Adv Mkhwebane can have no “reasonable apprehension” that any member of

the Committee will breach rule 89.

40 Second, Adv Mkhwebane seeks to abuse the rule contrary to its purpose.
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40.1 This issue was decisively dealt with by the Full Bench of this Court

(Saldanha, Steyn and Samela JJ) that dismissed Part A of Adv

Mkhwebane’s previous attempt to avoid accountability. 20 The ATM had

argued that the s 194 Rules were inconsistent with rule 89 because

they permitted the NA to consider allegations that were the subject of

uncompleted court proceedings. This Court firmly rejected the

argument. It held that rule 89 does “not preclude members of the

National Assembly from carrying out their oversight functions and the

holding of office bearers of Chapter 9 Institutions accountable in terms

of section 194 and the new Rules.”21 It reasoned that the NA’s

responsibility to ensure accountability of Chapter 9 institutions would

“be stultified if the sub judice rule was applicable.” 22

40.2 Precisely the same is true here. If rule 89 precluded a s 194 Committee

from even sitting because a member might reflect on pending court

proceedings, it would prevent the NA from performing its primary

function – holding the Public Protector accountable for her actions.

41 Third, Rule 89 is aimed at the conduct of members not the functioning of

committees and the NA. So even if there was a risk that a member of the

Committee would breach rule 89 in the Committee, the relief would be against

that member. As happens everyday in the NA, any member could object to the

statement, and the Chairperson would decide whether it was contrary to rule 89

20 Public Protector v Speaker of the National Assembly and Others [2020] ZAWCHC 117; 2020 (12) BCLR 1491
(WCC); [2020] 4 All SA 776 (WCC).
21 Ibid at para 108.
22 Ibid.
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or not. The possibility that Rule 89 might be breached is not a reason to bring the

business of the NA to a halt.

42 Accordingly, the rule 89 point has no merit.

No other basis for relief

43 Once we accept that the rescission application has no effect on the Committee’s

work, and that Rule 89 is no impediment to its work, little is left of Adv

Mkhwebane’s case.

44 Notionally, Adv Mkhwebane is asking for either an interim interdict or a stary

under Rule 45A. The requirements for each form of relief are similar:

44.1 A right or prospects of success:

44.1.1 For an interdict, Adv Mkhwebane must show a prima facie

right that is threatened. That right is not the right to review,

which requires no protection. “Quite apart from the right to

review and to set aside impugned decisions”, Adv

Mkhwebane was required to identify “a prima facie right that

is threatened by an impending or imminent irreparable harm.

The right to review the impugned decisions did not require any

preservation pendente lite.” 23

44.1.2 By contrast, for a stay under rule 45A, Adv Mkhwebane must

show prospects of success in the rescission application. As

23 National Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18; 2012 (6) SA
223 (CC); 2012 (11) BCLR 1148 (CC) at para 50.
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the Constitutional Court has put it, without a showing of

prospects of success “what would the point of the stay be?” 24

44.2 For both, Adv Mkhwebane must show she will suffer irreparable harm

if the stay is not granted, and that she has no alternative remedy.

44.3 As both are discretionary remedies, Adv Mkhwebane must also

demonstrate that the balance of convenience favours the granting of

interim relief.

45 She satisfies none of these requirements.

No prima facie right or prospects of success

46 First, Adv Mkhwebane can identify no right that will be affected if the s 194

Committee proceeds with its work. The Constitutional Court has determined that

the process is constitutional. She has not argued that the Committee will not

follow the prescribed process.

47 Adv Mkhwebane seems to argue that, if the rescission application succeeds, she

then would have been subjected to an unlawful process. But that affords he no

right today. Her rights today are defined by the Rules as approved by the

Constitutional Court. The fact that the law might change in the future does not

entitle someone to approach a court for an interdict in anticipation of that

(extremely unlikely) change in the law.

24 Provincial Government North West and Another v Tsoga Developers CC and Others [2016] ZACC 9; 2016 (5)
BCLR 687 (CC) at para 54.
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48 It is, therefore, not necessary to consider the particular rights which Adv

Mkhwebane asserts. None can aid her to avoid a lawful and constitutional

process.

49 Second, the rescission application could be a basis for a stay only if it had some

prospects of success. But the rescission application has absolutely zero

prospects of success.

50 The Constitutional Court recently stressed that one “cannot seek to invoke the

process of rescission to obtain a re hearing on the merits.” 25 That is so because

“once a court has duly pronounced a final order, it becomes functus officio and

has no power to alter the order”. 26 Where an order is not granted by default –

and the Constitutional Court’s order was not – the scope for rescission is

“unwaveringly narrow”. 27 The scope is narrow because “the very notion of

rescission of a court order constitutes the exception to the ordinary rule that court

orders, especially those of [the Constitutional] Court, are final. By its nature the

law of rescission invites a degree of legal uncertainty.”28

51 The only basis for the rescission application is that the Court made what Adv

Mkhwebane contends are errors of law. What Adv Mkhwebane claims are

“patent errors or omissions” are just grounds of appeal. Even if this Court or the

Constitutional Court thought it had made legal errors, that would not be a basis

to rescind. All the arguments Adv Mkhwebane advanced for why the Court erred

25 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud
in the Public Sector Including Organs of State and Others [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) at para
68.
26 Ibid.
27 Ibid.
28 Ibid at para 82.
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are arguments she advanced when the merits were argued. As Zuma makes

plain, an applicant who merely repeats arguments the Court considered “cannot

show, as he is required to, that but for the “errors”, this Court would have reached

a different conclusion.” 29 Her arguments – like Zuma’s – “constitute the stuff of

an appeal” not a rescission. 30

52 There is another obstacle – it is not open for this Court to second guess the

correctness of the Constitutional Court’s judgment. Even if Adv Mkhwebane was

entitled to argue that the Constitutional Court erred on the merits, only the

Constitutional Court can consider that claim. The rule of precedent means that it

is not open to this Court, which is permanently and inextricably bound by the

Constitutional Court’s judgment 31 to even consider that it might be wrong. Adv

Mkhwebane cannot, therefore, get out of the starting blocks for a stay under rule

45A because she has approached the wrong court.

Irreparable harm and alternative remedy

53 Adv Mkhwebane identifies no irreparable harm that she will suffer. Being required

to subject yourself to a lawful and constitutional process is not harm, let along

irreparable harm. It is a consequence of the office she chose to occupy.

54 Even if – by some miracle – the rescission application succeeds, the harm will

not be irreparable. Adv Mkhwebane will then be able to halt the process, if it is

29 Ibid at para 69.

30 Ibid at para 72.
31 Camps Bay Ratepayers and Residents Association and Another v Harrison and Another 2010] ZACC 19; 2011
(2) BCLR 121 (CC) ; 2011 (4) SA 42 (CC) at para 28.
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ongoing, or to review it if it has completed. Those remedies fully protect any rights

that she may accrue in the future.

Balance of convenience

55 The balance of convenience strongly weighs against granting the relief.

56 First, the prospects of success are a relevant factor in weighing the balance of

convenience – the better the prospects of success, the less the balance needs

to favour the applicant. 32 The prospects of success in the rescission – and

therefore in Part B – are virtually on-existent.

57 Second, granting the interdict will cause significant “separation of powers

harm”. 33 Adv Mkhwebane asks this Court to prevent the National Assembly from

performing its constitutionally assigned role of holding her accountable. “Whilst

a court has the power to grant a restraining order of that kind, it does not readily

do so except when a proper and strong case has been made out for the relief

and, even so, only in the clearest of cases.”34 No proper or strong case has been

made out. In fact, the case is hopeless. It is a selfish attempt to avoid public

accountability for personal benefit.

58 Third, the public interest will not be served by an interdict. An interdict will

undermine the integrity of three vital constitutional institutions – the Constitutional

Court, the National Assembly, and the Public Protector. It will imply that orders

of the Constitutional Court are not final and can be avoided by the device of

32 Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D).
33 OUTA at para 47.
34 OUTA at para 65.
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merely filing a rescission application. It will prevent the National Assembly from

performing its role of determining whether the Public Protector should be

impeached. And it will undermine the integrity of the Office of the Public Protector

by allowing Adv Mkhwebane to remain in office.

59 Accordingly, there is simply no basis for an interdict, and no justification for a stay

under Rule 45A.

IV NO BASIS FOR THE RELIEF AGAINST THE PRESIDENT

60 Adv Mkhwebane seeks to prevent the President from even deciding whether to

suspend her. She relies on two primary arguments:

60.1 The “proceedings” of the s 194 Committee have not started, and

therefore the President has no power to suspend her; and

60.2 The President is conflicted because she is considering complaints

against him, and therefore somebody else must decide whether to

suspend her.

61 Neither argument has any merits. On a proper, purposive reading of the

provision, the s 194 Committee has clearly started its proceedings. And the

President is not conflicted from suspending an incumbent Public Protector

merely because the office is investigating complaints against him.

62 If those arguments fail, there is nothing left to Adv Mkhwebane’s argument. But

she has, in any event, failed to satisfy the requirements for the extraordinary

interim relief she seeks.

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The s 194 process has started

63 Adv Mkhwebane’s claim is that the s 194 Committee’s proceedings have not

“commenced” as required by s 194(3)(a), and therefore the President’s power to

suspend has not been triggered. This argument is absurd on its face. The DA

tabled the motion for Adv Mkhwebane’s removal more than two years ago. The

Independent Panel completed its work over a year ago. The Committee has a

plan of action and has appointed evidence leaders.

64 To make the bizarre argument that the Committee has not “commenced” its work,

Adv Mkhwebane engages in a textualist, acontextual, and anti-purposivist

interpretation of s 194(3)(a). She never once asks what purpose the provision is

meant to achieve. Instead, she seeks to twist the language of the provision to

serve her narrow self-interest.

65 But that is not how courts must interpret the Constitution. The Constitutional

Court has – from its inception – endorsed an approach to constitutional

interpretation “which, whilst paying due regard to the language that has been

used, is ‘generous’ and ‘purposive’ and gives expression to the underlying values

of the Constitution”. 35 This requires that “Constitutional provisions must be

construed purposively and in the light of the Constitution as a whole.” 36

66 To understand when proceedings “commence” in terms of s 194(3)(a) we need

to ask what the purpose of the provision is, and what values it is meant to serve.

The purpose is self-evident – to protect the integrity and capacity of the institution

35 S v Makwanyane and Another [1995] ZACC 3; 1995 (6) BCLR 665 (CC); 1995 (3) SA 391 (CC) at para 9.
36 Matatiele Municipality v President of the RSA (No 2) [2006] ZACC 12; 2007 (6) SA 477 (CC); 2007 (1) BCLR
47 (CC) at para 36.
 Page 23

of the Public Protector. When an incumbent is facing a serious investigation, it is

often appropriate to suspend her to maintain public trust in the institution. If an

incumbent reliably suspected of misconduct or incapacity is allowed to remain in

office, public faith in the institution will drop. In addition, suspension avoids the

risk that the incumbent will be distracted from her primary role by the need to

defend herself in the s 194 inquiry. Section 194(3)(a) promotes the value of

accountability, and the value of independence by separating the office from a

suspect incumbent.

67 Deciding when the proceedings “commence” must be determined with that

purpose in mind. The question is: At what point will the public reasonably be

concerned that allowing an incumbent to remain in office could be inconsistent

with the integrity of the office? The Constitution does not draw the line at where

a motion for removal is made in the NA. That would be too early as the motion

may be without merit. And it does not draw the line at the point where the NA is

considering in plenary whether to vote to remove. That would be too late, as the

incumbent would remain in office throughout the inquiry into whether she should

be removed.

68 Instead, the Constitution finds the Goldilocks zone – “any time after the start of

the proceedings of a committee of the National Assembly for the removal of that

person”. A matter can only get into a formal s 194 inquiry once it has already

been vetted by the NA. It must be referred to an independent panel. That panel

must make a finding. The NA must consider the finding and decide that there is

sufficient merit to warrant an inquiry.

 Page 24

69 As soon as that point is reached, the need for a possible suspension arises. From

the moment the NA refers it to the Committee, there can be no doubt that the

complaints are serious and could result in the incumbent’s removal. And there is

no doubt that there will be a formal process that will divert the incumbent’s

attention. That triggers the purpose of the power to suspend.

70 Accordingly, the President had the power to suspend as soon as the NA referred

the matter to the s 194 committee. That time has long passed, and so there is no

doubt that the President has the power to suspend.

71 Delaying the power to suspend until the Committee starts its hearing evidence –

as Adv Mkhwebane contends – would be inconsistent with the constitutional

purpose:

71.1 Depending on the nature of the complaint, it will take several weeks or

months from the time the complaint is referred to the s 194 committee

before it can hold its first formal hearing. It has to make arrangements,

appoint evidence leaders, prepare the documents, find suitable dates

and so on.

71.2 But once the matter is referred to the Committee, the determination that

there is a reasonable complaint is made, and there is no doubt that a

hearing will be held.

71.3 The purpose or justification for suspension exists with equal strength

at the moment of referral as it does at the first formal hearing of

evidence.
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72 Adv Mkhwebane – unsurprisingly – never engages with the obvious purpose of

s 194(3)(a). Instead, she adopts four tactics to avoid the above logic.

73 First, she seeks to subvert the public purpose of s 194(3)(a) into a private

purpose concerned only with the rights of the incumbent, not with the integrity of

the office:

73.1 She argues that the provision “must of course be given a construction

which gives expression to the underlying rights values and which gives

the greatest protection of the subject in his or her relationship with the

State.” 37 But the purpose of s 194(3)(a) is not to protect the incumbent.

It is not a right-giving provision. It confers a power on the President to

protect Chapter Nine institutions from incumbents.

73.2 Her suggestion that a precautionary suspension “by definition … limits

the suspendee’s rights to dignity, reputation and work” 38 is just wrong.

The Constitutional Court has recently and unambiguously held that, in

the labour context, there is no need to afford a person a hearing prior

to a precautionary suspension, and that precautionary suspension with

pay “does not materially prejudice” the person. 39

74 Second, Adv Mkhwebane relies on the Constitutional Court’s finding in Public

Protector v Speaker of the National Assembly. 40 She argues that the

Constitutional Court held that “the process has not yet reached the stage of the

37 PP Heads at para 78.

38 PP Heads at para 80.
39 Long v South African Breweries (Pty) Ltd and Others; Long v South African Breweries (Pty) Ltd and Others
[2019] ZACC 7; (2019) 40 ILJ 965 (CC); 2019 (5) BCLR 609 (CC) ; [2019] 6 BLLR 515 (CC) at paras 24-5.
40 PP Heads at para 74.
 Page 26

section 194 enquiry before the rule 129AA committee”. 41 It would therefore make

no difference if the order invalidating the rule prohibiting legal representation was

retrospective. This passage does not aid her:

74.1 The Constitutional Court was not concerned with the commencement

of proceedings for the purposes of s 194(3)(a). It was concerned only

with whether proceedings had reached the stage where Adv

Mkhwebane would be able to exercise her right to legal representation.

Clearly they had not, so a retrospective order of invalidity would not

affect the ongoing process. The rule denying the Public Protector legal

representation would only arise when the hearing of evidence began.

74.2 The judgment is no authority at all for when the President’s power to

suspend arises. That has its own, entirely different, purposive trigger

set out above.

74.3 The language too does not aid Adv Mkhwebane. The Court said that

the process had not “reached the stage of the section 194 enquiry”.

That is a clear reference to the hearing of evidence. But s 194(3)(a)

refers to the “start of the proceedings” of the Committee. The

proceedings can start long before the hearing of evidence.

75 Third, Adv Mkhwebane also makes a variety of textual arguments to support her

argument that the power to suspend only kicks in when the first “hearing” starts

and the “charges” are put to her. None of these textual arguments address the

purposive argument above. But they are in any event unconvincing. She points

41 Speaker v PP at para 110.

 Page 27

to no textual obstacle to the interpretation adopted by the Speaker and the

President. At best for the Public Protector, a textualist approach is consistent with

her argument and the Respondents’ position. Any ambiguity must be resolved

by considering the purpose, which points in only one direction.

76 Fourth, Adv Mkhwebane seeks to draw a parallel with civil and criminal

proceedings, but both backfire on her:

76.1 She refers to Nxumalo which holds that civil proceedings commence

when summons are served, 42 not when the trial in fact commences.

The equivalent here is when the NA refers the motion to the s 194

Committee. That is the point where the process of the Committee is set

in motion.

76.2 She argues (without authority) that “criminal proceedings” begin when

a charge is read. 43 But the SCA has recently confirmed that “criminal

proceedings” include preparatory examinations; an enquiry into the

non-appearance of an accused in response to a summons under s 55

of the CPA; a bail application; an enquiry into the failure of an accused

on bail to appear at the trial or to return after an adjournment; and an

enquiry under s 205 of the CPA. 44 All of those occur long before any

evidence is led in a trial, or a charge is put.

42 PP Heads at para 64, citing Nxumalo v Minister of Justice and Others 1961 (3) SA 663 (W) at 667A-668A
43 PP Heads at para 67.
44 Kouwenhoven v DPP (Western Cape) and Others [2021] ZASCA 120; [2021] 4 All SA 619 (SCA); 2022 (1)
SACR 115 (SCA) at paras 14-5.
 Page 28

77 In sum, the proceedings started the moment the NA referred the motion to a s

194 Committee. The President has the power to suspend Adv Mkhwebane.

In any event, the President is not conflicted

78 The Public Protector’s case is that, as soon as she investigates the President,

he is automatically disqualified from deciding whether she should be suspended

or not. It does not matter what the nature of the investigation is, nor what the

merits of the complaint may be. The mere existence of an investigation is

sufficient to conflict the President out from performing his constitutionally

assigned role.

79 We first discuss what the proper standard is to judge the President, and then

show why he is not so conflicted as to prevent him from taking the decision.

80 But first, it is important to be frank: The person who has in fact exhibited bias is

Adv Mkhwebane. The Constitutional Court held that she failed to investigate

President Ramaphosa with an “open and inquiring mind”, and that she was

“unduly suspicious” of him. There is no direct evidence that President

Ramaphosa has any bias against Adv Mkhwebane at all. Yet she is the one

alleging bias to prevent him taking a decision whether or not to suspend her.

The standard

81 The President can only be prevented from exercising his power under s 194(3)(a)

if there is an objectively reasonable apprehension of bias. Two cases make this

apparent.
 Page 29

82 The Full Bench in the State Capture Judgment 45 considered the Public

Protector’s remedial action requiring the President to establish a commission of

inquiry into allegations of state capture. Many of those allegations concerned him

personally. He was alleged to have personally participated in criminal behaviour.

As the Court put it – he was “at the centre of the allegations regarding the Gupta

family's involvement in the appointment of Cabinet Ministers.” 46

83 The Full Bench had to decide whether it was lawful for the Public Protector to

require that the Chief Justice – not the President – select the judge to head the

Commission. “Any person chosen by the President to head the commission”, it

held, would “not be perceived as independent.” 47 The President had to be

removed from the process in “order to exclude any perception of bias and to

protect the integrity of the commission in the eyes of the public.” 48

84 The State Capture Court relied on the principles of recusal that apply to judges. 49

Those principles require recusal only when “there is a reasonable apprehension

of bias, in the mind of a reasonable litigant in possession of all the relevant facts,

that a judicial officer might not bring an impartial and unprejudiced mind to bear

on the resolution of the dispute before the court”. 50 This test comes with a

“presumption of impartiality” 51 and a “double requirement of reasonableness”:

45 President of the Republic of South Africa v Office of the Public Protector and Others [2017] ZAGPPHC 747;
2018 (2) SA 100 (GP) ; [2018] 1 All SA 800 (GP); 2018 (5) BCLR 609 (GP).
46 Ibid at para 142.
47 Ibid at para 143.
48 Ibid.
49 Ibid at paras 144-6.
50 Bernert v Absa Bank Ltd [2010] ZACC 28; 2011 (4) BCLR 329 (CC); 2011 (3) SA 92 (CC) at para 29.
51 Ibid at para 31.
 Page 30

84.1 Without other evidence, judicial officers are assumed to be impartial.

This flows from the nature of their office, and from the oath that they

take.

84.2 In addition, “[b]oth the person who apprehends bias and the

apprehension itself must be reasonable.” 52

85 The position of the President and that of a judge are not identical. But the

President takes a similar oath to “promote all that will advance the Republic”, and

“discharge my duties with all my strength and talents to the best of my knowledge

and ability and true to the dictates of my conscience”, and to “do justice to all”. 53

Courts should not lightly assume that the President will violate that oath.

86 That is especially so where the Constitution has granted a power expressly to

the President. There is a reason the Constitution allows the President to suspend

the Public Protector.

87 In Corruption Watch, 54 the Full Bench of the Pretoria High Court considered

whether former President Zuma could appoint a National Director of Public

Prosecutions given that he was facing a range of criminal charges. It held that

he could not because s 96(2)(b) of the Constitution requires the President not to

“act in any way that is inconsistent with their office, or expose themselves to any

52 Ibid at para 34.

53 Constitution Schedule 2, item 1.
54 Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and Others; Council for
the Advancement of the South African Constitution v President of the Republic of South Africa and Others
[2017] ZAGPPHC 743; [2018] 1 All SA 471 (GP); 2018 (1) SACR 317 (GP).
 Page 31

situation involving the risk of a conflict between their official responsibilities and

private interests”. 55

88 President Zuma was not only facing corruption charges. He had made it clear

that he “had every intention in the future to continue to use such processes as

are available to him to resist prosecution”. 56 This, the Court held, “would place

the incumbent NDPP firmly on the spot. It seems incongruous that under those

circumstances President Zuma should then be seen to be appointing the NDPP,

since his conflict both actual and perceived is self-evident.” 57

89 Corruption Watch does not expressly refer to the standard for judicial recusal.

But there is no reason to think the standard should be different from the one the

same court endorsed in State Capture. The standard must balance the need to

avoid conflicts with the need to allow the President to perform his constitutional

functions. The ordinary standard for recusal strikes that balance.

No conflict

90 With that background, Adv Mkhwebane’s claims of bias are without foundation.

The President has dealt with the details of each complaint, and we do not intend

to repeat his explanation. But on the level of principle, without some special

showing of bias, a mere complaint – even a reasonable one – about the

President’s conduct is not enough to prevent him from acting under s 194(3)(a).

There are nine reasons.

55 Ibid at para 112.

56 Ibid at para 115.
57 Ibid.
 Page 32

91 First, the constitutional role of the Public Protector is to investigate the executive

branch. There is a high likelihood that, at any time, she will be investigating the

President or a member of his Cabinet. Yet the Constitution still granted the power

to suspend to the President. That is a strong indication that the Constitution did

not anticipate that merely because the Public Protector may be investigating the

President or his government that he could not decide whether to suspend her.

92 The Constitutional Court has repeatedly held that there is nothing wrong with

affording a member of the Executive the power to suspend someone who might

investigate them or their associates, as long as the suspension has adequate

safeguards. It must not be without pay, and it must not be for an indefinite

duration. 58 Here, suspension is with pay, and the President has no control over

the length of the suspension, which is determined by the National Assembly.

93 Second, while the President has the sole power to suspend the Public Protector,

he cannot exercise that power on a whim. He only has the power to suspend

after the National Assembly commences proceedings to remove the Public

Protector. That means that when the President decides whether to suspend the

Public Protector, there will already be credible allegations of misconduct,

incapacity or incompetence against her. It is not, therefore, a power that the

President can easily abuse to sideline a troublesome Public Protector. He can

use it only to protect the office from a troublesome incumbent.

58 Corruption Watch NPC and Others v President of the Republic of South Africa and Others; Nxasana v
Corruption Watch NPC and Others [2018] ZACC 23; 2018 (10) BCLR 1179 (CC); 2018 (2) SACR 442 (CC) at
paras 45-8. See also Helen Suzman Foundation v President of the Republic of South Africa; Glenister v
President of the Republic of South Africa [2014] ZACC 32; 2015 (2) SA 1 (CC); 2015 (1) BCLR 1 (CC); McBride
v Minister of Police [2016] ZACC 30; 2016 (2) SACR 585 (CC); 2016 (11) BCLR 1398 (CC).
 Page 33

94 Third, the Public Protector’s powers are limited. She has no power to directly

discipline the President. She cannot remove or suspend him. That power is

reserved exclusively for the National Assembly. She cannot criminally prosecute

him, or even require that he be prosecuted. That power is reserved for the

National Prosecuting Authority. All she can do is make findings about the

President’s conduct, and require him to take steps to address the consequences

of any unlawful action. It is true that a finding of the Public Protector may be

embarrassing or inconvenient for the President. But it cannot directly threaten his

job, or his freedom.

95 Fourth, if the President suspends the Public Protector, it does not end or even

delay an investigation. The Deputy Public Protector will step into the shoes of the

Public Protector and the investigation will continue. 59 Adv Mkhwebane has not

put up any evidence that the Deputy Public Protector is likely to be more

favourably disposed to him than she is. Without that evidence, a reasonable

observer will have no basis to believe the President would suspend Adv

Mkhwebane in order to influence the outcome of the complaints.

96 Fifth, the President has no control over how long the suspension will last. It will

last until the end of the s 194 proceedings. The NA may decide not to impeach

Adv Mkhwebane in which case she will immediately return to her role, and will

be able to pick up on all the complaints, including those against the President.

Put simply, a reasonable observer will know that a suspension may achieve

nothing at all for the President.

59 Public Protector Act 23 of 1994 s 2(7).

 Page 34

97 Sixth, precautionary suspension is not punitive. The Public Protector will not be

denied her salary during the suspension. She will simply be free from her ordinary

obligations of office and able to focus on the s 194 inquiry.

98 Seventh, if the mere existence of a complaint could prevent the President from

acting, it would obviously be open to abuse. Any member of the public, or the

Public Protector herself, could prevent the President from acting my initiating a

complaint, no matter its content. That would undermine the integrity of the

constitutional scheme – it would allow the Public Protector to effectively pick

which member of Cabinet she wanted to decide on her suspension.

99 Eighth, as a result, if a complaint can give rise to a conflict of interest, it must be

because of the specific content or nature of the complaint. But the Public

Protector failed in her founding papers to provide any meaningful details about

the complaints. She simply described their content, without explaining why these

specific complaints gave rise to a conflict of interest. 60 Her case is that the bare

fact that he is “under investigation by the office of the Public Protector” creates a

conflict of interest. 61 She must be held to that approach, and is not entitled to

seek to supplement her case in reply. 62

100 Ninth, the case is obviously distinguishable from two prior cases (State Capture

and Corruption Watch) where the Pretoria High Court held that a conflict of

interest prevented former President Zuma from making appointments.

60 FA paras 53-60, Record pp 23-5.

61 FA para 60, Record p 25.
62 RA paras 23-41, Record pp 957-963.
 Page 35

100.1 Appointments are very different from suspensions. When a person

appoints, he handpicks who he wants to act. Suspension under

s 194(3)(a) merely prevents one person from acting, without any ability

to determine who will take over. It is natural that a reasonable person

will be apprehensive about someone who is handpicked by the very

person she will investigate. It does not follow that a reasonable person

will be suspicious when the President suspends an incumbent (who is

herself facing removal), merely because some complaints are pending

against him, when: (a) the investigation will be continued by the deputy;

and (b) the ultimate decision on the complaint may be taken by the

Deputy, the incumbent, or a new Public Protector.

100.2 In both those cases there was already a finding that the allegations

against President Zuma were credible and serious. The Public

Protector, after a lengthy investigation, had determined there was a real

possibility that President Zuma had acted unlawfully. In Corruption

Watch the SCA had determined the previous decision to drop

corruption charges against President Zuma was irrational, and his co-

conspirator (Mr Shaik) had already been convicted. Here we have none

of that. There is nothing to show that these are either credible or serious

allegations against the President.

101 In sum, there is no reasonable basis to perceive that the President is biased.

Whether he suspends or not, it will not aid him in the investigations. It will not

undermine the ability of the Office to investigate him. The constitutional scheme

requires the President to take the decision. He should be allowed to do so.

 Page 36

No basis for an interdict

102 If the s 194 Committee’s proceedings have started, and there is no conflict, then

there is no basis for the relief Adv Mkhwebane seeks. Her other arguments are

all depend on those two claims. If the fall, the rest of the case falls like a house

of cards.

103 But even if she can convince this court there is some merit in the two arguments

(the Court is not asked to finally determine them), that does not entitle her to an

interim interdict. She must still clear the high hurdle of OUTA – she must make

“the clearest of cases” and show that interference with the other branches of

government before they even act is justified.

104 She cannot do so because she cannot satisfy any of the four requirements for

interim relief.

No prima facie right

105 To repeat, the right an applicant must show is not the right to review. Adv

Mkhwebane was required to identify a prima facie right that is threatened by an

impending or imminent irreparable harm. The right to review the decisions that

have not yet been taken does not require any preservation pendente lite. 63

Accordingly, it is not enough for Adv Mkhwebane to argue that she will succeed

in a review if the President decides to suspend her. She must identify a different

right that cannot be protected through review.

106 She fails to do so:

63 OUTA at para 50.

 Page 37

106.1 She says she relies on s 1(c) of the Constitution as the prima facie right

she seeks to protect. But s 1 of the Constitution does not create

enforceable rights – it establishes background norms that inform other

rights. 64 She also refers to the principle of legality. That may create a

right, but it is one that would be fully vindicated by a review in due

course. Adv Mkhwebane repeatedly complains that she has a “right to

participate in a lawful process”. Of course she does. But that right is not

one enforced through interim interdicts of the exercise of constitutional

power – it is one enforced through reviews.

106.2 Adv Mkhwebane also refers to the duty on the President and the NA to

uphold the dignity of the office of the Public Protector. Relying on s

181(3) of the Constitution is a spectacular own goal. Section 194(3)(a)

exists precisely to protect the dignity and integrity of the office.

Suspending Adv Mkhwebane would fulfil, not violate that duty.

106.3 Adv Mkhwebane refers generally to her constitutional rights to dignity,

administrative justice, labour rights, to trade, and to access to courts.

But she never explains how the President taking a decision would limit

any of these rights. It plainly would not. She will not be denied her pay

and will return to work if she is not impeached. She will remain able to

approach any court. She will be able to assert her administrative rights

through review.

64 Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO)
and Others [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) at para 21.
 Page 38

107 Accordingly, even if Adv Mkhwebane’s complaints about the start of the s 194

process and the President’s supposed conflict were good, they are not the type

of right that can ground an interim interdict. Neither of them concerns a prima

facie right that could ground an interim interdict. But even if they could, they are

without merit.

No irreparable harm

108 Adv Mkhwebane casts far and wide to find some irreparable harm. She can

identify none.

109 The harm must be irreparable. That means that it must be impossible to remedy

it by a successful review after the President acts. None of the supposed harms

Adv Mkhwebane identifies meet that requirement.

110 First, Adv Mkhwebane argues that she will suffer “constitutional harm” because

the process will proceed on the basis of the report of the independent panel which

she argues in her rescission application is unconstitutional. This Court cannot

treat that as harm. The Constitutional Court has already unanimously decided

the issue. Therefore, by definition, no constitutional harm can be suffered. This

Court is bound by the Constitutional Court’s judgment which holds that there is

nothing wrong with the process of the independent panel. The “constitutional

harm” is, in any event, exactly the type of harm that can be rectified by an ex post

facto review.

111 Second, Adv Mkhwebane asserts that her “right to work (human dignity) will be

severely harmed”. This argument faces multiple insurmountable hurdles:

 Page 39

111.1 There is no “right to work”. There is a right to practice a trade,

occupation or profession in s 22 of the Constitution. But that is not a

right to any particular job, but a right to be able to practice a particular

profession. Suspension as the Public Protector does not prevent Adv

Mkhwebane practicing her profession (whatever that might be).

111.2 Adv Mkhwebane rightly does not rely on the labour rights in s 23

because they do not apply to her.

111.3 Any constitutional right must obviously be read in light of the other

provisions of the Constitution. Those include s 194(3)(a). It does not

limit a right to suspend the Public Protector under that section.

112 Third, Adv Mkhwebane argues that her “rights to protection of the law and access

to justice are also at stake if the relief is not granted”. She does not explain this

assertion. It is another example of trying to reverse the default position when

interdicting government action. Adv Mkhwebane argues that if there is an

allegation that an untaken decision might be unlawful, its unlawfulness must be

determined in advance, otherwise rights will be violated. But that is the opposite

of what our law says. Our law says – save in exceptional circumstances – the

state must be allowed to act and trusted to act lawfully. The remedies for unlawful

state conduct are to review and set it aside after it has been taken.

113 Fourth, in argument 65 Adv Mkhwebane seeks to rely on the judgment in

Economic Freedom Fighters v Gordhan. 66 In that matter, Adv Mkhwebane had

65 PP Heads at para 118.

66 Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and Others [2020]
ZACC 10; 2020 (8) BCLR 916 (CC); 2020 (6) SA 325 (CC)
 Page 40

made a finding against a cabinet minister (Mr Gordhan) and directed that he

should be disciplined in various ways. Mr Gordhan obtained interim relief to

suspend the remedial action pending a review. The Constitutional Court

dismissed an appeal against the interim relief. The irreparable harm the High

Court identified was that Mr Gordhan would be subject disciplinary proceedings

triggered by what he argued was an unlawful report. These facts are entirely

different:

113.1 The harm here is not permanent disciplinary action, but temporary,

precautionary suspension.

113.2 Mr Gordhan sought to challenge the legality of the very reason why he

would be subjected to disciplinary proceedings – the Public Protector’s

Report. The case against the President does not question whether Adv

Mkhwebane should be suspended, it only deals with when she should

be suspended, and by whom. That does not trigger the same type of

irreparable harm as Mr Gordhan might face.

Alternative remedy

114 The Public Protector has two obvious alternative remedies other than the

extraordinary attempt to prevent the President from taking a decision at all.

115 First, if the President decides to suspend her, she can seek an order interdicting

it from taking effect. She can do so on an extremely urgent basis so that she

would only spend a few days or weeks out of office. That remedy – unlike this

one – would not require the Court to get involved in a hypothetical exercise, nor

give legal advice to the parties.

 Page 41

116 Second, she can – after seeking an interdict, or without an interdict – review the

decision if the President decides to suspend her. She can do so urgently if she

wishes. This will remedy all the harm that she alleges she will suffer. It will allow

her to return to office while the s 194 process unfolds.

Balance of Convenience

117 The balance of convenience plainly favours refusing the interdict. There are three

factors to consider:

117.1 The harm to the public interest if the interdict is granted;

117.2 The absence of harm to Adv Mkhwebane if the interdict is refused; and

117.3 The absence of prospects of success in Part B.

118 First, the harms that will be suffered if the interdict is granted are the following:

118.1 Harm to the office of the Public Protector. The longer Adv Mkhwebane

occupies the role while facing serious charges that may lead to her

removal, the more public faith in the office erodes.

118.2 Separation of powers harm. The Constitution assigns the power to

suspend the Public Protector to the President. Interference with that

power inevitably trenches on the separation of powers.

118.3 Accountability harm. Accountability is one of the Constitution’s

founding values. An interdict at this stage would facilitate Adv

Mkhwebane’s scheme to evade accountability for her misconduct and

incompetence.
 Page 42

119 Second, the office of the Public Protector by contrast will suffer no harm. The

integrity of her office will be secured. The office will continue to function under

the leadership of the Deputy Public Protector while the s 194 process runs its

course – just as the Public Protector Act envisages.

120 To the extent the harm to Adv Mkwhebane is relevant – considering she has not

litigated in her personal capacity – she will suffer none:

120.1 She will continue to be paid her full salary and benefits for the duration

of the s 194 process.

120.2 She will be able to focus on defending herself in this process without

also have to perform her job as the Public Protector.

120.3 She will be free to challenge any decision to suspend her after it is

taken, and any decision to remove her from office after it is taken.

121 Third, the balance of convenience already overwhelmingly favours refusing relief.

This Court should also consider the prospects of success in Part B. The relevant

Part B relief is to review and set aside “the conduct and/or decision of the

President in initiating and/or pursuing a suspension process against the

applicant”. But no Court will ever grant that relief:

121.1 The President has not taken a decision. He has merely started a

process of taking a decision. Courts do not review and set aside

decisions that have not been taken.

121.2 Even if a court was willing to consider an attack on a preliminary

decision, there is no basis for the review. For the reasons set out above
 Page 43

when assessing the prima facie right, Adv Mkhwebane fails to make

any case on which the President could be prevented from deciding

whether to suspend her.

122 In sum, the balance of convenience overwhelmingly favours dismissing the

application. The public interest will not be served by entertaining further delaying

tactics by Adv Mkwhebane. It will be served by allowing the President to do his

constitutional duty.

V COSTS

123 The DA seeks an order that Adv Mkhwebane should pay the costs of this

application in her personal capacity, and that she should be prohibited from using

public funds to pay her own legal representatives.

124 First, public officials cannot use public resources to litigate to protect private

interests. As the SCA has explained: “the powers and responsibilities of public

servants … must be exercised for the public benefit, and not for personal

advancement”. 67 It refused to even consider an appeal against an order of

punitive costs against former President Zuma in the State Capture litigation

because he had litigated “for the purpose of protecting his own personal

interests.”68

125 Exactly the same reasoning applies here. Adv Mkhwebane is transparently

litigating to protect her own interest in remaining in her position. She is not

67 Zuma v Office of the Public Protector and Others [2020] ZASCA 138 at para 32.
68 Ibid at para 33.
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protecting any interest of the Office of the Public Protector. She should pay the

costs of the litigation, not the taxpayer.

126 Second, the application is inherently abusive and absurd. It seeks to prevent the

Committee, the Speaker, and the President from even taking decisions that might

prejudice Adv Mkhwebane. The only reasons to litigate in this way are:

126.1 To avoid accountability by litigating every point no matter how

meritless.

126.2 To delay, through any means available, any decision that may be

adverse to her.

126.3 To do all that litigation while she is in office and has access to state

funds to pay her lawyers to pursue her personal interests.

127 This is not the conduct that is expected of the Public Protector. She is required

to place the institutional interests of her office above her own personal ambitions.

Our Courts have held that “public officials, and not the taxpayer, should pay the

costs of litigation brought against them when their ‘defiance of their constitutional

obligations is egregious’.” 69 There is a “higher duty” on public officials in litigation

which demands that they “observe heightened standards in litigation. … They

must do right and they must do it properly.” 70

128 This litigation undermines the integrity of the Constitutional Court, the NA, the

President, and the Public Protector. It is abusive and contrary to Adv

69 Zuma at para 31, quoting Public Protector v SARB at para 153.

70 Public Protector v SARB at para 152.
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Mkhwebane’s “higher duty”. She should not be permitted to shift the cost to the

taxpayer.

129 Finally, Adv Mkhwebane should also not be permitted to foist the costs of her

own legal representation on the taxpayer. For the same reasons, this Court

should order that she must pay her attorneys and counsel from her own pocket.

STEVEN BUDLENDER SC

MICHAEL BISHOP
Counsel for fifth respondent

Chambers, Sandton and Cape Town

22 April 2022
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TABLE OF AUTHORITIES

1. Bernert v Absa Bank Ltd [2010] ZACC 28; 2011 (4) BCLR 329 (CC); 2011 (3) SA 92
(CC)

2. Camps Bay Ratepayers and Residents Association and Another v Harrison and
Another 2010] ZACC 19; 2011 (2) BCLR 121 (CC) ; 2011 (4) SA 42 (CC)

3. Certification of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 26;
1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)

4. Corruption Watch (RF) NPC and Another v President of the Republic of South Africa
and Others; Council for the Advancement of the South African Constitution v President
of the Republic of South Africa and Others [2017] ZAGPPHC 743; [2018] 1 All SA 471
(GP); 2018 (1) SACR 317 (GP).

5. Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v
Gordhan and Others (CCT 232/19; CCT 233/19) [2020] ZACC 10; 2020 (8) BCLR 916
(CC); 2020 (6) SA 325 (CC)

6. Erstwhile Tenants of Williston Court and Others v Lewray Investments (Pty) Ltd and
Another 2016 (6) SA 466 (GJ).

7. Glenister v President of the Republic of South Africa and Others [2011] ZACC 6; 2011
(3) SA 347 (CC); 2011 (7) BCLR 651 (CC)

8. Helen Suzman Foundation v President of the Republic of South Africa; Glenister v

President of the Republic of South Africa [2014] ZACC 32; 2015 (2) SA 1 (CC); 2015
(1) BCLR 1 (CC).

9. Hlumisa Technologies And Another v Nedbank Ltd And Others 2020 (4) SA 553 (ECG)

10. Khoza and Others v Body Corporate of Ella Court 2014 (2) SA 112 (GSJ); Peniel
Developments (Pty) Ltd and Another v Pietersen and Others 2014 (2) SA 503 (GJ);
[2014] 2 All SA 219 (GJ).

11. Kouwenhoven v DPP (Western Cape) and Others [2021] ZASCA 120; [2021] 4 All SA
619 (SCA); 2022 (1) SACR 115 (SCA) at paras 14-5.

12. Long v South African Breweries (Pty) Ltd and Others; Long v South African Breweries
(Pty) Ltd and Others [2019] ZACC 7; (2019) 40 ILJ 965 (CC); 2019 (5) BCLR 609 (CC)
[2019] 6 BLLR 515 (CC) at paras 24-5.

13. Matatiele Municipality v President of the RSA (No 2) [2006] ZACC 12; 2007 (6) SA 477
(CC); 2007 (1) BCLR 47 (CC) at para 36.
 Page 47

14. McBride v Minister of Police [2016] ZACC 30; 2016 (2) SACR 585 (CC); 2016 (11)
BCLR 1398 (CC).

15. Minister of Home Affairs v National Institute for Crime Prevention and the Re-
Integration of Offenders (NICRO) and Others [2004] ZACC 10; 2005 (3) SA 280 (CC);
2004 (5) BCLR 445 (CC) at para 21.

16. National Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012]
ZACC 18; 2012 (6) SA 223 (CC); 2012 (11) BCLR 1148 (CC)

17. Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D).

18. Peach v Kudjoe and Another [2018] ZAGPPHC 291.

19. Pine Glow Investments (Pty) Ltd And Others v Brick-On-Brick Property And Others
2019 (4) SA 75 (MN) at para 11.

20. President of the Republic of South Africa v Office of the Public Protector and Others
[2017] ZAGPPHC 747; 2018 (2) SA 100 (GP) ; [2018] 1 All SA 800 (GP); 2018 (5)
BCLR 609 (GP).

21. Provincial Government North West and Another v Tsoga Developers CC and Others
[2016] ZACC 9; 2016 (5) BCLR 687 (CC) at para 54.

22. Public Protector and Others v President of the Republic of South Africa and Others
[2021] ZACC 19; 2021 (9) BCLR 929 (CC); 2021 (6) SA 37 (CC) at para 140.

23. Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (9) BCLR 1113
(CC); 2019 (6) SA 253 (CC)

24. Public Protector v Speaker of the National Assembly and Others [2020] ZAWCHC 117;
2020 (12) BCLR 1491 (WCC); [2020] 4 All SA 776 (WCC).

25. S v Makwanyane and Another [1995] ZACC 3; 1995 (6) BCLR 665 (CC); 1995 (3) SA
391 (CC) at para 9.

26. South African Reserve Bank v Public Protector and Others [2017] ZAGPPHC 443;
[2017] 4 All SA 269 (GP); 2017 (6) SA 198 (GP).

27. Speaker of the National Assembly v Public Protector and Others; Democratic Alliance
v Public Protector and Others [2022] ZACC 1

28. United Democratic Movement v Speaker of the National Assembly and Others [2017]
ZACC 21; 2017 (8) BCLR 1061 (CC); 2017 (5) SA 300 (CC) at paras

29. Van Den Bos No v Mohloki And Others 2022 (2) SA 616 (GJ).

30. Zuma v Office of the Public Protector and Others [2020] ZASCA 138 at para 32.
 Page 48

31. Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector Including Organs of State and
Others [2021] ZACC 28; 2021 (11) BCLR 1263 (CC)