Mkhwebane plays ‘Sobukwe card’ in fight with parliament
The legal war between public protector Busisiwe Mkhwebane and National Assembly speaker Thandi Modise has escalated, with both now seeking personal costs orders against each other in a heated battle over Mkhwebane’s possible impeachment.
In papers filed at the high court in Cape Town this week, Mkhwebane compared the newly enacted parliamentary rules that will govern any potential inquiry into her fitness to hold office to the “Sobukwe clause” the apartheid-era legislation used to arbitrarily extend the imprisonment of PAC leader Robert Sobukwe. The public protector contends that these rules, which she is challenging in court, are aimed solely “at the removal of Mkhwebane”.
Modise is having none of Mkhwebane’s conspiracy claims and wants her to face a personal costs order for claiming that the speaker had an “ulterior purpose” for approving a DA motion that could result in her impeachment.
The DA contends that Mkhwebane’s incompetence has been clearly demonstrated by the court rulings given against her in the Reserve Bank and
Estina dairy project scam cases
in which the public protector was ordered to personally pay legal costs for unreasonable and “bad faith” litigation.
Mkhwebane is resolute that these rulings are simply the “opinions” of the judges who gave them.
She has now also hit back at the speaker for refusing to suspend any potential inquiry into her fitness to hold office until her major legal challenge to the inquiry process is concluded.
“A neutral observer may ask what the rush is for, as it may well turn out to be a rush in the wrong direction,” Mkhwebane
— states in court papers, later adding Modise had adopted the “unbefitting” stance of an “interested adversary” in the case.
Western Cape judge president John Hlophe, who is embroiled in a much publicised battle with his deputy, Patricia Goliath, has agreed that Mkhwebane’s urgent bid to interdict any potential parliamentary inquiry into her fitness to hold office will be heard on March 26 and 27.
He has also agreed that the case should be decided by three judges.
The judge president arguably faces a potential minefield in choosing the judges who will decide on the politically explosive dispute, as 12 of his court’s 34 permanent judges have refused to share a bench with their colleague judge Mushtak Parker, who, according to them, has given contradictory accounts of whether he was or was not assaulted by Hlophe.
The 12 include some of the high court’s most senior judges, and their exclusion from the public protector case may raise eyebrows in a judicial environment now very clearly defined by suspicion and bad blood.
Goliath’s complaint against Hlophe includes claims that he sought to interfere in the appointment of the judges in the crucial Earthlife Africa challenge to SA’s intergovernmental agreement with Russian nuclear agency Rosatom so that judges disposed towards then president Jacob Zuma would have decided the case. The judge president is adamant that he did nothing wrong and has accused Goliath of fabricating her claims against him in a malicious bid to remove him from office.
Hlophe still faces a similar and unresolved 2008 complaint from the Constitutional Court, which accused him of seeking to influence two justices to rule in Zuma’s favour in challenges to search warrants used to secure evidence in the then ANC president’s corruption trial.
Both of these complaints have been referred for investigation by the Judicial Service Commission’s conduct committee but will, for now, not be the subject of an impeachment probe.
But with the allegations against Hlophe of politically motivated interference in the appointment of judges still unresolved, the judge president will know his decision on who will hear the Mkhwebane interdict application will be keenly watched and will be the subject of speculation and debate.