Constitutional Court: Mkhwebane's application an 'abuse of court process'

The Constitutional Court has dismissed suspended public protector Busisiwe Mkhwebane's second rescission application, calling it “an abuse of process of court”.

In a one-paragraph order, the ConCourt said no case had been made out for rescission and ordered Mkhwebane to pay the costs of the application in her personal capacity.

In an unprecedented move, Mkhwebane had in May returned to the apex court a second time for rescission after asking the ConCourt to rescind its February judgment that cleared the way for an impeachment process in parliament.

When that application was rejected, she went back again asking for the first rescission order to be rescinded. However, the ConCourt's terse order on Wednesday called this second application “an abuse”.

“The Constitutional Court has considered the application for rescission. It has concluded that the application should be dismissed as no case has been made out for rescission. The applicant ought to pay costs in her personal capacity, as this application constitutes an abuse of process of court,” said the order.

The justices that participated in the order were Mbuyiseli Madlanga, Stevan Majiedt, Rammaka Mathopo, Nonkosi Mhlantla, Owen Rogers, Zukisa Tshiqi and acting justices Selby Baqwa and Thokozile Mbatha.

Chief justice Raymond Zondo and justice Jody Kollapen did not participate in the decision. Zondo was cited as a party to the second rescission application.

Mkhwebane's second rescission application centred on the way the ConCourt had dealt with an SMS she said pointed to a leak from the apex court in a separate but related case in the Western Cape High Court on April 24. 

In the SMS, Ismail Abramjee said he had it “on very good authority” that the ConCourt had decided to reject Mkhwebane's first rescission application and would be announcing that decision before the coming Friday, which would have been April 29. 

An investigation into the SMS by retired Supreme Court of Appeal president Lex Mpati, which Zondo had requested, found that though Kollapen knew Abramjee and had been in telephonic contact with him, there was no evidence that he had shared any confidential information with him.

In her application, Mkhwebane had taken issue with the way her concerns about the SMS had been dealt with. She had also asked the court to declare invalid and unconstitutional Zondo's conduct in authorising the first rescission order before the outcome of the investigation had been announced.  

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