Public Protector applies for the rescission, varying and/or reconsideration of the Constitutional Court’s Bosasa decision

The Office of the Public Protector on Friday, July 23, 2021 approached the Constitutional Court with an application for the rescission, varying and/or reconsideration of the apex court’s dismissal earlier in the month of the office’s appeal against the High Court’s decision to set aside the Bosasa investigation report.

The application was brought in terms of Rule 42 of the Uniform Rules of Court read with Rule 29 of the Rules of the Constitutional Court. In the alternative, the office seeks the said relief in terms of common law, or section 38 and/or section 172 of the Constitution.

The application centers on the patently erroneous finding that the Public Protector, Adv. Busisiwe Mkhwebane, “changed” the Executive Code of Ethics, replacing the word “willfully” with “deliberately or inadvertently”. This finding was pivotal to the decision to dismiss the appeal.

It will be argued respectfully in court that, in fact, the court relied on the old version of the Code, which was published in 2000 while Adv. Mkhwebane invoked, verbatim, the provisions of the amended version of 2007, which the Constitutional Court has itself endorsed as recently as March 2016 in the EFF v Speaker of the National Assembly case.

The office is just as alive to the importance of the principle of finality in the administration of justice as it is to the implications of the dismissal of the appeal on Adv. Mkhwebane both in her personal and professional capacities. The dismissal of the appeal also has serious implication for the work of the office, which is the sole enforcer of executive ethics under the Executive Members’ Ethics Act, 1998.