Mkhwebane must produce application to SSA for her claim to continue: SCA

Ernest Mabuza Journalist
The Supreme Court of Appeal has ordered public protector Busisiwe Mkhwebane to produce an application for an analyst post she made at the State Security Agency in 2016. File photo.
The Supreme Court of Appeal has ordered public protector Busisiwe Mkhwebane to produce an application for an analyst post she made at the State Security Agency in 2016. File photo.
Image: Thapelo Morebudi

The Supreme Court of Appeal (SCA) has ruled in favour of two DA MPs in their battle against public protector Busisiwe Mkhwebane.

Mkhwebane is suing the two for defamation.

The SCA ordered that Mkhwebane produce for inspection her application for the post of analyst: domestic branch in the State Security Agency (SSA) that she submitted in 2016.

The case has its genesis in 2016 when DA MP Glynnis Breytenbach held a press conference where she and fellow MP Werner Horn said Mkhwebane's experience and qualification made her not suitable for the position of public protector. They suggested that Mkhwebane had been in the employ of the SSA while she was employed by the home affairs department as an immigration officer in China from 2009 to 2016.

Mkhwebane and the office of the public protector took issue with this suggestion and went to the high court in Cape Town in October 2017, where they sought an order directing Breytenbach and Horn to retract the defamatory statements and to apologise.

She said the statements made were meant to convey that she was a spy at the time of nomination for public protector in 2016 and would remain as such after her appointment. She said the statements were meant to convey she was to be treated with suspicion as she continued to be on the payroll of the SSA, and not independent because she was connected to the then president Jacob Zuma, who was allegedly abusing the SSA.

Mkhwebane, in her court application, said she did not want any monetary compensation.

She said her aim was to vindicate her right to integrity and her right to her reputation as well as to ensure confidence in the office of the public protector.

The DA and its MPs opposed her application.

In their preparation for the case, they asked that Mkhwebane provide her application for the post of analyst at SSA in 2016 and also the acceptance letter of that position.

Mkhwebane refused.

The high court refused the DA's application to compel her to provide these documents, prompting Breytenbach and Horn to appeal to the SCA.

In the judgment on Thursday, the SCA upheld their appeal and ordered Mkhwebane to produce her application for the analyst position.

“Ms Mkhwebane’s application for appointment is relevant in that it is bound to contain details of her employment history, including those relative to the time when she was deployed to China,” said the acting deputy president of the SCA, judge Mahomed Navsa.

He said the timeline was critical.

“In my view that document should be produced by Ms Mkhwebane. The court below erred in concluding that there was no reference to the application for appointment to the post of analyst and that it was irrelevant.”

Navsa ordered that Mkhwebane provide this document by no later than April 1.

He ordered that the DA, Breytenbach and Horn file their answering affidavits in the main application by Mkhwebane by April 16.

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