Public protector Busisiwe Mkhwebane is scheduled to appear before parliament’s Section 194 inquiry investigating her fitness to hold office in July.

This is according to a draft programme adopted by the special Section 194 committee on Wednesday. 

The provisional dates for Mkhwebane’s appearance are July 26-29. Additional hearing days will be added if necessary, the committee said.

It decided to move ahead with its inquiry into Mkhwebane's fitness to hold office despite her second rescission application in the Constitutional Court.

The court last week refused to rescind its previous judgment against her which cleared the way for the impeachment process to proceed against her.

It also emerged at Wednesday’s meeting that Mkhwebane wants proceedings before the high court in Cape Town set down for May 18 and 19 to be postponed pending an investigation of an SMS which was sent to a senior counsel representing parliament and which made reference to the outcome of her Constitutional Court rescission application.

Mkhwebane had approached the Western Cape High Court in March seeking to interdict the parliamentary process and to stop President Cyril Ramaphosa from suspending her.

The matter was set down for a hearing on April 26 but on that day it emerged that counsel for the speaker of the National Assembly, Andrew Breitenbach, had received an SMS in which the author, Ismail Abramjee, wrote he had it “on very good authority” that the ConCourt had decided to reject Mkhwebane's rescission application and would be announcing that decision before the coming Friday - April 29.

That SMS resulted in the April 26 hearings being postponed to May 18 and 19 to allow the parties to report the matter to chief justice Raymond Zondo and for him to investigate.

The matter is still under investigation.

“But the festival (of correspondence) continues. We have since received a communication wherein the public protector wants the proceedings of May 18 and 19 postponed pending the investigation by the chief justice,” said parliamentary legal adviser Siviwe Njikela.

Njikela reiterated the advice he’s previously given to the committee that there was no legal impediment to the inquiry proceeding.

“It is up to the committee to decide,” he said.

Njikela explained that the work of parliament cannot be trumped by what is before the court, otherwise parliament would be paralysed in every instance. “It means all you have to do, will be to file an application before court.”

Parliament, as a separate arm of government, has an exclusive constitutional mandate to decide whether the public protector is incompetent or has committed misconduct, and no court can decide that.

“So that can’t be sub judice,” he said.

ANC, DA and GOOD MPs insisted that the inquiry should continue, saying “attempts to conflate and contaminate” the work of the committee and Abramjee’s SMS should not be entertained.

In light of there being no legal impediment against proceeding, ANC deputy chief whip Doris Dlakude said the committee should continue with its work.

“I don’t want to dwell on the leakages and everything that has happened; it’s very unfortunate, but it’s not our baby. Those who are responsible for dealing with it must deal with it,” she said in reference to the infamous SMS.

The DA’s Leon Schreiber added that the committee should not be paralysed by “Stalingrad tactics” from outside, as it has a clear mandate from the National Assembly to conduct the inquiry.

“Until that mandate is not valid, we have a duty to proceed,” he said.

The National Assembly passed a motion in March last year for the establishment of a special committee to inquire into Mkhwebane’s competence.

“Should we indulge this latest episode ... we are going down a rabbit hole. What prevents a third, fourth or fifth application for rescission? It becomes a bit of a farce, frankly,” said Schreiber.

Brett Herron of GOOD said: “It seems as if there is an attempt to conflate the SMS saga with the cases of what we are dealing with. There seems to be attempt to contaminate our proceedings with this SMS. If there is misconduct related to that SMS, it’s irrelevant to our proceedings”.

The UDM and the ATM disagreed.

UDM leader Bantu Holomisa suggested that the inquiry should wait until the investigation into the SMS has been concluded. He expressed concern about the inquiry proceeding when the matter is “probably sub judice”.

The ATM’s Vuyo Zungula said the SMS issue was serious as it “points to serious criminal conduct on the part of some of the Constitutional Court judges”.

“It brings another dimension which can’t be brushed aside or swept under the carpet,” he said.

He urged the committee to wait for Zondo’s investigation and a police investigation into Abramjee.

“Is it not prudent for the committee to await these investigations to avoid being part of a contaminated process? We can’t divorce what happened in the Constitutional Court and criminal proceedings with the work of this committee,” said Zungula.

The committee is scheduled to meet again on June 3 to discuss the procedural management of hearings.