Judge lashes public protector’s criticism
Public protector Busisiwe Mkhwebane’s scathing attacks on almost everyone involved in the parliamentary process — that could see her impeached — have drawn fierce criticism from the Western Cape High Court, where she is fighting to interdict that process.
Public protector Busisiwe Mkhwebane’s scathing attacks on almost everyone involved in the parliamentary process — that could see her impeached — have drawn fierce criticism from the Western Cape High Court, where she is fighting to interdict that process.
On Wednesday, judge Vincent Saldanha repeatedly questioned Mkhwebane’s legal representative, advocate Dali Mpofu about her demand that anyone who has criticised her or questioned her competence be interdicted from participating in the inquiry into her fitness to hold office, on the basis that they have a “conflict of interest”.
“Who in the National Assembly will be left to deal with this matter?” Saldanha asked Mpofu.
“I don’t know,” Mpofu responded, before saying that “everyone who has not cast judgment” on the public protector would be able to participate in her inquiry process.
Mpofu had argued that the DA, which brought the motion that could result in Mkhwebane facing an impeachment probe, had a vendetta against the public protector — a contention Saldanha dismissed as irrelevant.
In court papers, Mkhwebane attacks the “malicious” DA for laying multiple complaints about her fitness to hold office over the years, and says some of the party’s “new-found supporters” are driven by corrupt motives. She further accuses the DA of seeking to undermine the constitution by attacking her.
The DA’s motion for Mkhwebane’s impeachment is based, in large part, on the devastating judgments given against her in the Reserve Bank and Estina cases. The DA contends there is ample evidence that the public protector is guilty of misconduct and evidently incompetent, but she is adamant that the rulings made against her are “opinions” and cannot be used as a basis for her removal.
Mkhwebane has also claimed that National Assembly speaker Thandi Modise acted with an “ulterior purpose” in initiating her impeachment inquiry process. In court papers, she also accuses the members of parliament’s justice and correctional services portfolio committee, who raised questions about her fitness to hold office, of unlawfully prejudging the issue of whether she should be removed.
“According to the rules of natural justice and fairness, such delinquent members, having prejudged the issues, ought to play no role in the process intended to look objectively into the very allegations they made.”
Earlier on Wednesday, Saldanha took issue with Mkhwebane comparing the rules that will govern the inquiry into her fitness to the “Sobukwe clause” — the apartheid-era legislation used to arbitrarily extend the imprisonment of PAC leader Robert Sobukwe.
“How can you make the analogy that this parliament would make rules akin to what the apartheid parliament did?” the judge asked Mpofu.
Mpofu argued that Mkhwebane was, in fact, commenting on the DA’s role in formulating the rules governing the impeachment of a Chapter 9 institution head — which she argues are focused solely on her removal.
Saldanha was unconvinced. “At the end of the day, the rules [that] are under the attack are the rules that have been made by parliament. So if there are any mala fides [exercises of bad faith], you need to show that parliament acted mala fides.”
THE DA’S MOTION FOR HER IMPEACHMENT IS BASED, IN LARGE PART, ON THE DEVASTATING JUDGMENTS GIVEN AGAINST HER