Modise’s lawyer hits out at Mkhwebane
Public protector Busisiwe Mkhwebane’s legal submissions in the court battle over her potential impeachment demonstrated an “undertone of contempt” for the national assembly, speaker Thandi Modise’s legal counsel said on Thursday.
Public protector Busisiwe Mkhwebane’s legal submissions in the court battle over her potential impeachment demonstrated an “undertone of contempt” for the national assembly, speaker Thandi Modise’s counsel said on Thursday.
Advocate Andrew Breytenbach, who is representing Modise in Mkhwebane’s application to interdict a potential parliamentary process to have her impeached, has stressed that the speaker was “simply doing her job” in processing a DA motion for an inquiry into the public protector’s fitness to hold office.
He said it was “distressing” that Mkhwebane had chosen to cast aspersions against Modise. Modise also said it was not proper for her to describe a process intended to hold her office accountable as a nuisance.
The legal representative was responding to allegations made by Mkhwebane in court papers, in which she described a potential motion for her impeachment as a “nuisance” and accused Modise of acting in “bad faith”.
“My client is at pains to point out one thing … she is simply doing her duty here,” Breytenbach argued in a virtual Western Cape high court hearing on Thursday.
“It is distressing that someone in as senior a position as the public protector would cast the aspersions that she has against the speaker.”
Breytenbach said all four of the accusations of “bad faith” and “ulterior purpose” Mkhwebane had levelled against Modise were based on evidence that was flimsy.
Mkhwebane wants the high court to interdict Modise from proceeding with the 17-stage process that could result in her removal from office, pending her constitutional challenge to the rules that will govern that process. That challenge, in which Mkhwebane attacks almost everyone involved in her potential impeachment, is set to be heard in November.
In court papers, Mkhwebane contends that her removal from office as the result of an impeachment inquiry and a subsequent two-thirds majority vote in the National Assembly was “a numerical and political improbability”.
This, she said, was because the DA — which brought the motion seeking an inquiry into her fitness to hold office, based on the scathing rulings given about her Reserve Bank and Estina reports — held “only 84 seats” in the 400-member National Assembly.
“At the time of my appointment the DA was the only political party in parliament which opposed my appointment. It may have attracted a few opportunistic political fellow travellers since then but not to the extent of conceivably achieving the requisite magic number of 267 votes,” Mkhwebane said.
“Such an outcome cannot be reasonably apprehended. Even in the very unlikely event of the
DA somehow spreading its influence by threefold in its numerical strength, it will still fall short of the target by 15 votes.”
Mkhwebane argued that the DA’s “real objective” in bringing a motion for her impeachment was “merely to destabilise the office of the public protector”. The motion’s true threat lay in its “nuisance value”, she argued.
Breytenbach dismissed Mkhwebane’s claims that Modise had “taken up the cause of the DA” in her response to the public protector’s interdict application as “simply not true”.
He said: “What she has done, is that she has come to the defence of parliament as an institution.”
Breytenbach added that, in bringing the motions for an impeachment process against Mkhwebane, DA former and current chief whips John Steenhuisen and Natasha Mazzone “were exercising, rather than abusing, a right conferred by the constitution”.
Advocate Steven Budlender, for the DA, argued that Mkhwebane should face a punitive costs order for making “very serious” allegations that the opposition party’s impeachment motion against her was driven by its vendetta against her.
“If anything, all my clients have sought to do is exercise their rights in terms of the constitution and indeed, arguably, their responsibilities, because if they have a genuine concern that does not comply with the requirements (for her position) on the basis of her conduct in office, then they have a responsibility to raise that.”