Business Day

Mkhwebane plays ‘Sobukwe card’ in fight with parliament

- Karyn Maughan

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.

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