Public Protector Busisiwe Mkhwebane.
- No harm will come to Parliament if the removal proceedings against the Public Protector are halted, her legal counsel has argued.
- She will also ask the court to declare invalid the rules for the removal of a Chapter 9 head.
- Judgment has been reserved in the Western Cape High Court.
What harm will come to the Speaker of the National Assembly if the removal proceedings against Public Protector Busisiwe Mkhwebane are halted, pending a review of the parliamentary rules?
This was the question posed by Mkhwebane’s counsel, advocate Dali Mpofu SC, on Monday.
He claimed the counsel for the Speaker, Thandi Modise, and the DA couldn’t provide an adequate response to this question.
Mkhwebane was asking the Western Cape High Court to halt the removal proceedings against her.
That is the first part of her application.
In the second part, she is asking the court to declare the rules for the removal of a Chapter 9 head unconstitutional and invalid.
This will be heard on 24 and 25 November.
She brought the application in February, after Modise approved DA chief whip Natasha Mazzone’s motion.
The National Assembly adopted the rules for the removal of a Chapter 9 head on 3 December last year.
Three days later, Mazzone brought the first motion, which she later withdrew and replaced with a more detailed one, which was also accepted by Modise.
READ | DA has ‘vendetta’ against Public Protector Busisiwe Mkhwebane, charges her legal counsel
Arguments were heard on 12 and 13 August in a virtual hearing, but Mpofu’s opportunity to respond was thwarted on two occasions – until Monday.
Proceedings started at around 13:30, and Mpofu said he would need about three hours.
Proceedings only finished around 18:30, when Judges Vincent Saldanha, Elize Steyn and Monde Samela reserved judgment.
When he previously made his arguments, Mpofu said the DA had a “vendetta” against Mkhwebane since day one, and that Modise picked up the cudgels for the DA.
On Monday, he expanded on this argument.
He said merely appearing before a parliamentary body to consider her fitness for office would be “in the basket of harm” for Mkhwebane.
Mpofu supported his arguments with rulings involving Public Enterprises Minister Pravin Gordhan and Public Works and Infrastructure Minister Patricia de Lille.
The latter argument referred to De Lille, then still mayor of Cape Town, challenging the DA’s disciplinary steps.
He also referred to a court finding against Mkhwebane in favour of President Cyril Ramaphosa, because she had not allowed Ramaphosa to make representations on her recommendation that he should be investigated for money laundering.
He said one could not have one “law for the president and another law for the Public Protector”.
The DA asked for a punitive cost order against Mkhwebane.
To this, Mpofu said: “The audacity of the DA, who have insulted Ms Mkhwebane and called her a spy!”
He said the DA had “hounded” her and was asking for a cost order, purely because it had “an axe to grind” with her.
“It can play politics, but it can’t ask the court to do its bidding.”
He said not only did Modise tolerate the DA’s critical remarks about Mkhwebane, but also called it robustness.
“Robustness? Please!” he said.
In Mpofu’s address of almost five hours, Judge Saldanha often questioned him.
When Mpofu finally concluded, Judge Saldanha said: “You see, Mr Mpofu, here in the Western Cape, we engage robustly.”
Mpofu said maybe that is why Parliament should be moved.
