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PP V Speaker - DA Heads
PP V Speaker - DA Heads
Case No.:
and
TABLE OF CONTENTS
I INTRODUCTION............................................................................................................ 3
II ACCOUNTABILITY ....................................................................................................... 5
V COSTS ........................................................................................................................ 43
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I INTRODUCTION
legislative functions. It is brought with one motive only – for the Applicant (Adv
2 Adv Mkhwebane has been repeatedly held by the Courts to be dishonest and
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.
accountability.
4 Adv Mkhwebane asks this Court to prevent the NA from continuing with its
4.1 The only real basis she advances is that she has lodged a recission
4.2 It does not suspend the Constitutional Court’s order. This Court cannot
Court order will not prevent NA from acting. Even if this Court could
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.
5.1 Adv Mkhwebane seeks to prevent the President from even deciding
whether to suspend her. Tellingly, she never enters into the merits of
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
5.3 The President is not conflicted merely because the Office of the Public
Mkhwebane will not make the complaints go away, nor is there any
5.4 Even if there was some merit to the claims, they should be adjudicated
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.
7.1 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
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
II ACCOUNTABILITY
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
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
11 While Chapter Nine Institutions perform a vital role in holding the executive
recently explained the need for even the Public Protector to be held accountable:
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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structure.”4
power to remove the Public Protector from office. When the Constitution was
certified, the Constitutional Court held that, to protect the Public Protector’s
majority is needed. But the power is still granted to the NA as the representatives
of the people.
would fail to perform its task of holding the Public Protector to account. Again,
“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
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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that the incumbent is not fit for office. The longer the process takes, the more
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
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
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
was not done. Instead of accepting the judgment of the apex court, she brought
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
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
21 But Adv Mkhwebane had another fire to fight. The President had – quite properly
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
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
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
24 This Court now has to consider an application that seeks to prevent organs of
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
power treads deep into the heartland of those branches’ authority. As was made
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
25 Yet that is what Adv Mkhwebane seeks. She wants to stop the process dead in
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
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
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
28 The case against the Speaker and the Chairperson rests on two substantive legs:
acting; and
28.2 Rule 89 of the NA Rules prevents the Committee from acting while the
29.1 A rescission application is not a “Get out of Jail Free Card” that
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
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
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
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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32 The contrary conclusions in two earlier cases 18 are clearly wrong for the reasons
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
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
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
36 This Court only has the power to suspend the operation of its own order. It
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.
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
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
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
39 First, the s 194 Committee need not and should not enter into the merits of the
proceed on the basis that the Constitutional Court’s order is final. Accordingly,
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
argued that the s 194 Rules were inconsistent with rule 89 because
National Assembly from carrying out their oversight functions and the
of section 194 and the new Rules.”21 It reasoned that the NA’s
40.2 Precisely the same is true here. If rule 89 precluded a s 194 Committee
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
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.
under Rule 45A. The requirements for each form of relief are similar:
The right to review the impugned decisions did not require any
44.1.2 By contrast, for a stay under rule 45A, Adv Mkhwebane must
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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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.
interim relief.
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
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
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.
50 The Constitutional Court recently stressed that one “cannot seek to invoke the
“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
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
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
52 There is another obstacle – it is not open for this Court to second guess the
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
Mkhwebane cannot, therefore, get out of the starting blocks for a stay under rule
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
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
ongoing, or to review it if it has completed. Those remedies fully protect any rights
Balance of convenience
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
harm”. 33 Adv Mkhwebane asks this Court to prevent the National Assembly from
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
58 Third, the public interest will not be served by an interdict. An interdict will
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
impeached. And it will undermine the integrity of the Office of the Public Protector
59 Accordingly, there is simply no basis for an interdict, and no justification for a stay
60 Adv Mkhwebane seeks to prevent the President from even deciding whether to
60.1 The “proceedings” of the s 194 Committee have not started, and
suspend her.
provision, the s 194 Committee has clearly started its proceedings. And the
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
63 Adv Mkhwebane’s claim is that the s 194 Committee’s proceedings have not
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
64 To make the bizarre argument that the Committee has not “commenced” its work,
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
65 But that is not how courts must interpret the Constitution. The 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
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.
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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
suspect incumbent.
purpose in mind. The question is: At what point will the public reasonably be
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
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
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
71 Delaying the power to suspend until the Committee starts its hearing evidence –
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,
and so on.
71.2 But once the matter is referred to the Committee, the determination that
71.3 The purpose or justification for suspension exists with equal strength
evidence.
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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
Constitutional Court held that “the process has not yet reached the stage of the
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
74.1 The Constitutional Court was not concerned with the commencement
affect the ongoing process. The rule denying the Public Protector legal
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
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”.
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
President. At best for the Public Protector, a textualist approach is consistent with
her argument and the Respondents’ position. Any ambiguity must be resolved
76 Fourth, Adv Mkhwebane seeks to draw a parallel with civil and criminal
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
enquiry under s 205 of the CPA. 44 All of those occur long before any
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.
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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.
78 The Public Protector’s case is that, as soon as she investigates the President,
or not. It does not matter what the nature of the investigation is, nor what the
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
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)
apparent.
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82 The Full Bench in the State Capture Judgment 45 considered the Public
inquiry into allegations of state capture. Many of those allegations concerned him
As the Court put it – he was “at the centre of the allegations regarding the Gupta
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
removed from the process in “order to exclude any perception of bias and to
84 The State Capture Court relied on the principles of recusal that apply to judges. 49
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
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.
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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
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.
the President. There is a reason the Constitution allows the President to suspend
87 In Corruption Watch, 54 the Full Bench of the Pretoria High Court considered
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
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
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
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
President’s conduct is not enough to prevent him from acting under s 194(3)(a).
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
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
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
Protector. That means that when the President decides whether to suspend the
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
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
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
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
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
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
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
s 194(3)(a) merely prevents one person from acting, without any ability
person she will investigate. It does not follow that a reasonable person
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
100.2 In both those cases there was already a finding that the allegations
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
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
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
104 She cannot do so because she cannot satisfy any of the four requirements for
interim relief.
105 To repeat, the right an applicant must show is not the right to review. Adv
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
106.1 She says she relies on s 1(c) of the Constitution as the prima facie right
rights. 64 She also refers to the principle of legality. That may create a
participate in a lawful process”. Of course she does. But that right is not
106.2 Adv Mkhwebane also refers to the duty on the President and the NA to
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.
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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
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
treat that as harm. The Constitutional Court has already unanimously decided
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
111.2 Adv Mkhwebane rightly does not rely on the labour rights in s 23
111.3 Any constitutional right must obviously be read in light of the other
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
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.
made a finding against a cabinet minister (Mr Gordhan) and directed that he
dismissed an appeal against the interim relief. The irreparable harm the High
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
Report. The case against the President does not question whether Adv
be suspended, and by whom. That does not trigger the same type of
Alternative remedy
114 The Public Protector has two obvious alternative remedies other than the
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
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
Balance of Convenience
117 The balance of convenience plainly favours refusing the interdict. There are three
factors to consider:
117.2 The absence of harm to Adv Mkhwebane if the interdict is refused; and
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
incompetence.
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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
120 To the extent the harm to Adv Mkwhebane is relevant – considering she has not
120.1 She will continue to be paid her full salary and benefits for the duration
120.2 She will be able to focus on defending herself in this process without
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
121.1 The President has not taken a decision. He has merely started a
decision, there is no basis for the review. For the reasons set out above
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when assessing the prima facie right, Adv Mkhwebane fails to make
application. The public interest will not be served by entertaining further delaying
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
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
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
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:
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
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
128 This litigation undermines the integrity of the Constitutional Court, the NA, the
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
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)
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).
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)