Business Day

Modise’s lawyer hits out at Mkhwebane

- Karyn Maughan

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.”

 ?? Phill Magakoe ?? Under fire: Public protector Busisiwe Mkhwebane has described a potential motion for her impeachmen­t as a ‘nuisance’ ./
Phill Magakoe Under fire: Public protector Busisiwe Mkhwebane has described a potential motion for her impeachmen­t as a ‘nuisance’ ./

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