Busisiwe Mkhwebane’s lawyers have indicated they will look to challenge and set aside the Constitutional Court’s decision to dismiss her application for rescission of its judgment, which essentially upheld Parliament’s procedure for investigating her fitness to hold office.

‘In essence,’ says public interest lawyer Nicole Fritz, director of the Helen Suzman Foundation, ‘Mkhwebane plans to have rescinded the court’s decision not to rescind its earlier judgment, which went against her.’

In her opinion piece in Business Day, Fritz says she is tempted to write that this latest proposed challenge is a legal non-starter, ‘but that might incur the Public Protector’s accusation that in recognising her legal deficiencies, I’m privy to some sort of insider information from the court. Still, while the situation is ludicrous, it isn’t funny… it is a serious matter’.

She notes the Chief Justice has already announced it is undertaking an investigation into the alleged leak by Ismail Abramjee.

Fritz says what is striking about the Public Protector’s announcement of her latest intended legal challenge is that while it is replete with reference to her rights having been grossly violated, and adamant that no ‘neutral and objective’ person could now not be convinced that Parliament’s impeachment process must be suspended, not even a suggestion of reasoned argument is put forth as to how the Public Protector is actually prejudiced by these events.

‘Instead this error by the court, if it is that, has been snatched up by the Public Protector in a giddy bid to save, or at least extend, her calamitous legal strategy. As she looks to make a mockery of the court process – contemptuous of fundamental principles such as the finality of judgments – she also seeks to take pot shots at the courts, and the constitutional order itself.’

Fritz points to a similar leak with the publication of a draft opinion from US Supreme Court Justice Samuel Alito.

There an investigation ordered into the circumstances surrounding the leak. The draft opinion, in which a majority of the justices concur, when delivered would reverse Roe v Wade, which for 50 years has provided constitutional protection of women’s right to secure an abortion.

Fritz says this decision will also be ruinous of the court’s integrity, the public’s perceptions of the courts, and respect for legal process.

She adds: ‘It may be SA’s misfortune that those here who engage in sustained campaigns of mudslinging at our courts, if only to maintain that their legal appeals have never been finally and fairly determined, look to find resonance with and secure legitimacy from global voices that are increasingly sceptical of the law and its process. Look also to the Israeli Supreme Court’s recent ruling that the centuries-observed customary law prohibition of the transfer of occupied populations demands no domestic enforcement.’

Full Business Day report