Mkwebane: call to probe ‘racial slurs’

• Impeached public protector says she faced biases primarily by officials of Indian descent

Parliament’s ethics committee must investigate EFF MP Busisiwe Mkhwebane’s racially motivated attack on a Supreme Court of Appeal judge, judiciary monitor Judges Matter says

The FF+ has also written to speaker of the National Assembly Thoko Didiza requesting that the matter be referred to the powers and privileges committee for what FF+ justice spokesperson Heloise Denner said were “shockingly inappropriate” comments which cast aspersions on parliamentary staff.

Cosatu has also called on parliament to hold “errant” MPs accountable.

Parliament has criticised as unfounded Mkhwebane’s attacks on parliamentary staff and legal advisers.

In a social media post, Mkhwebane blamed her struggle against her impeachment on figures predominantly of Indian descent.

She singled out the late former public enterprises minister Pravin Gordhan, who led evidence in her impeachment inquiry; Cape Town advocate Nazreen Bawa; parliament’s chief legal adviser, advocate Zuraya Adhikarie; and parliamentary legal adviser Fatima Ebrahim.

Mkhwebane included Supreme Court of Appeal judge

Visvanathan Ponnan in her attack on judicial officers of Indian descent, after the court on Tuesday dismissed her application to appeal a 2022 Western Cape High Court ruling related to her impeachment inquiry.

The dismissal had the unanimous support of the bench, which included Caroline Nicholls, Billy Mothle and acting justices Mokgere Masipa and Evette Dippenaar.

STRONGEST TERMS

Mbekezeli Benjamin, legal researcher for Judges Matter, said the body condemned Mkhwebane’s “outrageous statement [about judge Ponnan] in the strongest possible terms” and called on Didiza, to refer her comments to parliament’s ethics committee for further action.

“It is particularly disappointing to see this attack on the judiciary come from an advocate of the high court, bound to the ethical code of the Legal Practice Council, Benjamin said.

“Parliament’s justice committee exercises oversight over the judiciary and, as a member of that committee, Ms Mkhwebane is bound by section 165(4) of the constitution to take measures to protect the dignity of the courts. Her comments arguably violate this provision of the constitution. We hope the speaker will refer Ms Mkhwebane’s comments to parliament’s ethics committee for further action.

“The expectation on all of us is that when we file disputes in court, we must trust the courts to resolve them fairly and not falsely accuse judges of impropriety. It is troubling that Ms Mkhwebane said nothing about the substance of the Supreme Court of Appeal’s judgment, and instead attacked justice Nathan Ponnan on ethnic and racial grounds. Judges Matter condemns her outrageous statement in the strongest possible terms,” Benjamin said.

Mkhwebane described Ponnan as arrogant and dismissive after describing her application as having been “dead on arrival”. That comment underscored the challenges and biases she faced primarily by those of Indian heritage, she added.

Parliament “dismissed with dismay” Mkhwebane’s statements, which sought to impugn the integrity of parliament’s staff as well as the evidence leader of the section 194 committee that deliberated on Mkhwebane’s impeachment.

“There is no merit to the attack levelled against these legal advisers who have served parliament with diligence and integrity over the years,” parliament’s statement reads.

“The unwarranted attack on these officials, along with the racial slurs used by advocate Mkhwebane, is particularly regrettable in a democratic society such as ours, where human dignity should be protected and respected.

“As an MP and a public representative who owes allegiance to our constitution, advocate Mkhwebane has a responsibility to uphold and protect the values enshrined in the constitution, which are the cornerstone of our democracy,” parliament said in the statement.

“Advocate Mkhwebane has appropriately sought the court’s intervention to express her dissatisfaction with the outcome of the section 194 committee, and the court has now struck the matter from the roll.”

Mkhwebane was impeached in September last year when 318 members of the National Assembly voted for her removal after an investigation and hours of testimony into claims of misconduct and incompetence.

Her application to the Supreme Court of Appeal sought to appeal against a Western Cape High Court judgment that rejected a case challenging the refusal by MPs Qubudile Dyantyi and Kevin Mileham to recuse themselves from the section 194 committee. She had also wanted to set aside the committee’s decisions not to call “relevant witnesses” to testify.

However, by the time the appeal was heard by the SCA the committee’s work was long done and she had already been impeached.

DISMISSIVE

Ponnan was dismissive of the performance of Mkhwebane’s legal counsel, Dali Mpofu, saying “exasperated sighs, soapbox oratory, empty rhetoric, political posturing, theatrical gestures and long-winded dismissive non sequiturs have no place in a courtroom”.

The court also ordered that Mkhwebane pay the costs of the appeal.

On why the appeal was moot, Ponnan said Mkhwebane had remained in office for a full term, and that term had now expired.

“Restoration to office is thus constitutionally and factually impossible. In the circumstances, no public benefit can come from a judicial pronouncement on the regularity of the [impeachment] committee’s rulings,” he said.