Public Protector Busisiwe Mkhwebane has defended her decision to lodge a complaint with the Judicial Service Commission (JSC) against retired Constitutional Court Justice Chris Jafta.
At the centre of her complaint is Jafta’s damning remarks in the ConCourt’s judgment over Mkhwebane’s findings that President Cyril Ramaphosa had misled Parliament over the CR17 campaign matter.
Mkhwebane claims in her complaint that Jafta’s language has serious implications for her legal career. However, Judges Matter, a body that monitors the judiciary, believes Mkhwebane is clutching at straws.
The judgment with which Mkhwebane is aggrieved was delivered by Jafta in July last year.
“The public protector was wrong to change the code. she could not have that considerably thought that willfully could mean inadvertently, these words are mutually exclusive. What she did went beyond the parameters of interpretation. But the finding itself is framed in terms that are concerning, the president could not inadvertently and deliberately mislead Parliament because these two words cannot apply at the same time. It is either one or the other. Therefore, the public protector was wrong in fact and on law with regard to the issue of whether the president had willfully misled Parliament. And the High Court was right to set aside her finding,” said Justice Chris Jafta.
Reaction to the CR 17 judgment:
Mkhwebane turns to JSC
But Mkhwebane’s attempts to have the Constitutional Court rescind the judgment failed earlier this year. Now she has turned to the JSC.
Public Protector’s Spokesperson Oupa Segalwe explains, “The Public Protector is aggrieved because in writing that particular judgment Justice Jafta does not make this acknowledgment that there are two versions that the public protector relied on. the other and that the Constitutional Court itself has previously relied on the same version that the public protector used. So, the public protector struggles to understand how this acknowledgment was not made when Justice Jafta had before him as part of the record, an explanation about this very same issue as well as a copy of the executive code of ethics that the public protector relied on.”
He says Mkhwebane is not trying to appeal against the apex court’s judgment. “This is not a backdoor appeal on the part of the public protector. She is alive to the reality that once the Constitutional Court has pronounced itself on the matter, that’s the end of it. Her gripe is more on this allegation that she changed the wording of the code of ethics because that couldn’t be further from the truth.”
Mkhwebane says the judgment is posing serious implications for her legal career.
“This is causing a lot of problems for the public protector especially in relation to her career prospects because already there are people who are gunning for her. They want her to be struck off the roll of advocates purely on the basis of that decision and it is for that she has approached the JSC which is a body empowered to hold judges to account where allegations of misconduct are made against them or where it is alleged that they have misconducted themselves in breach of the code of ethics that is applicable to judicial officers. And so, the public protector only asks for an apology or at least an acknowledgment that she did not do what is suggested in the judgment in question,” adds Segalwe.
‘No merit in complaint’
But the judges’ watchdog body believes there is no merit in Mkhwebane’s complaint.
“The complaint by the public protector is filed in terms of the code of judicial conduct which regulates how judges may behave both in their official duties and also in their private lives. The problem with the public protector’s complaint is that it relates to an order or judgment of the court. In terms of the law, there can be no investigation into the order or judgment of the court. The only option available is to take the judgment on appeal or review or to get it rescinded. Public Protector Mkhwebane has already tried to get the judgment rescinded but has failed to do so. And so she is now filing the complaint as a means of last resort for her. In terms of the code of conduct, there can be no investigation into this complaint. And so the judicial conduct committee which is responsible for holding judges to account for misconduct will have to dismiss the complaint as the complaint does not have merit,” says Judges Matter’s Mbekezeli Benjamin.
Mkhwebane has lodged a three-pronged approach in a bid to save her job and legal career. She has asked the Constitutional Court to reconsider its earlier decision on her impeachment by the National Assembly.
She is also expected back in the High Court in Cape Town next week in an attempt to halt her impeachment and to prevent Ramaphosa from suspending her pending the outcome of her rescission application in the ConCourt.