Mkhwebane’s legal challenge moot

• Public protector’s application for an interim interdict staying the parliamentary procedure is moot after DA submits new motion, says speaker’s office

Busisiwe Mkhwebane’s efforts to halt an inquiry into her fitness to hold office have been rendered moot after the DA withdrew its motion for her removal, the office of the speaker of parliament said on Wednesday.

Busisiwe Mkhwebane’s efforts to halt an inquiry into her fitness to hold office have been rendered moot after the DA withdrew its motion for her removal, the office of the speaker of parliament said on Wednesday.

Last week the DA’s acting chief whip, Natasha Mazzone, withdrew her party’s motion, saying they had received new evidence. They have since submitted a new, more substantial motion for the speaker’s consideration.

On Wednesday evening, speaker of parliament Thandi Modise issued a statement saying she was satisfied with the new motion submitted by the DA. She said the submission complied with the rules of the house. “The speaker has therefore written to political parties represented in the National Assembly inviting them afresh to nominate suitable people to serve on an external panel of experts. Parties have until March 6 to submit names to the speaker,” a statement from her office said.

ASSESSMENT

Within 30 days of its appointment, the panel must conduct and finalise its preliminary assessment and make a recommendation to the speaker.

The withdrawal of Mazzone’s motion of December 6 2019 meant that the resulting parliamentary process, including the steps taken on February 21 towards the establishment of an independent panel of external experts to assess whether there is prima facie evidence to support the motion had fallen away, parliamentary spokesperson Moloto Mothapo told Business Day on Wednesday.

NO RELEVANCE

He said this also meant Mkhwebane’s application for an “urgent interim interdict staying the parliamentary process started by Mazzone’s motion of December 6 2019 is of no practical relevance”.

But Mkhwebane insisted, through her spokesperson, Oupa Segalwe, that her court action was “as relevant as ever”.

“This latest motion by the DA is still based on the same rules the public protector seeks to be declared unlawful and unconstitutional,” Segalwe said. “Therefore, the basis of the court dispute presently pending at court has not yet disappeared.”

It is understood Mkhwebane’s lawyers have written to the DA and Modise demanding they file formal responses to her urgent court bid. Both have missed deadlines to do so.

But Mothapo said Modise would only respond to Mkhwebane if she filed a new interdict application based on the new motion submitted by Mazzone.

“If advocate Mkhwebane decides to seek an urgent interim interdict in relation to the new parliamentary process started by Mazzone’s new motion of February 21 2020, the speaker will consider the grounds for the new interdict set out in Mkhwebane’s court papers and decide whether or not she will oppose the granting of the new interdict,” he said.

In her challenge to any potential inquiry into her fitness, Mkhwebane is adamant the court rulings against her cannot be used as a basis for any such investigation. The DA’s case is based almost entirely on them.

Mazzone argues Mkhwebane is guilty of “failing intentionally or in a grossly negligent manner to conduct her investigations and/or make her decisions in a manner that ensures the independent and impartial conduct of investigations”.

NOT IMPARTIAL

According to Mazzone, this lack of impartiality has become evident in the way in which Mkhwebane has sought “to avoid making findings against or directing remedial action in respect of certain public officials, while deliberately seeking to reach conclusions of unlawful conduct and impose far-reaching disciplinary measures and remedial action in respect of other officials (even where such conclusions and/or measures and/or remedial action manifestly has no basis in law or in fact)”.

As evidence of this alleged bias, Mazzone has attached the litigation against Mkhwebane by President Cyril Ramaphosa and public enterprises minister Pravin Gordhan over what they contend are the public protector’s legally and factually flawed reports against them.

Mazzone has filed more than 7,000 pages of documentation, which include the adverse rulings against Mkhwebane in the Reserve Bank case and Estina dairy farm scam, as part of her party’s new motion for Mkhwebane’s removal.

The motion also includes testimony by seven of the public protector’s current and former staff members, who Mazzone says have been “threatened with or had disciplinary action taken against them unlawfully and on trumped-up charges” and have been “intimidated, harassed and victimised” by Mkhwebane.

WASTEFUL SPENDING

Mazzone contends Mkhwebane has failed “intentionally or in a grossly negligent manner to prevent fruitless, wasteful and unauthorised public expenditure in legal costs”.

There may not be any finality on the case in the immediate future. However, what is clear is that the public protector wants a legal guarantee that she has stalled that investigation — and is determined not to abandon her politically explosive court battle against the DA and Modise.

MAZZONE HAS FILED MORE THAN 7,000 PAGES AS PART OF HER PARTY ’ S NEW MOTION