‘Sobukwe analogy bizarre’
Judge rejects Mpofu’s use of apartheid-era clause for DA’s bid to remove public protector
ADVOCATE Dali Mpofu was taken to task yesterday by the Western Cape High Court for accusing the DA of seeking to use a “Sobukwe-type clause” in order to remove Public Protector advocate Busisiwe Mkhwebane from office.
Mpofu’s assertion saw him entangled in a long discussion with Judge Vincent Saldanha.
Mpofu made submissions in the case to interdict Parliament from removing Mkhwebane from office.
Mkhwebane brought the application earlier this year but it was postponed by agreement due to the outbreak of Covid-19.
National Assembly Speaker Thandi Modise later went ahead with a process to appoint a panel that will assess the motion submitted by DA chief whip Natasha Mazzone.
Mpofu told the high court that the application contained allegations of ulterior motives and the first class of allegations were around the DA.
“There is no doubt that the DA has had a vendetta, traced back literally from day one of the Public
Protector’s appointment and even before her selection,” he said.
Judge Saldanha countered this, saying the official opposition argued it was exercising its constitutional mandate to hold Mkhwebane accountable.
“If they don’t, that would be amiss. You speak of vendetta as something clandestine,” he said.
Judge Saldanha also said the DA was entitled to lay complaints against Mkhwebane.
In his reply, Mpofu said it did not mean the DA could not have an ulterior motive. This prompted the judge to ask if Modise was part of the vendetta and how far the mala fides went.
Mpofu stated that the DA had been insisting that Mkhwebane should not be appointed and called her a spy.
“They say it perpetually in their complaints and even try to peddle that on the pronouncements by courts.”
He also said the official opposition had from October 2016 been saying she should be removed from office.
“If someone says that is not pursuing an agenda, then nothing will ever be evidence for that.”
Mpofu further said that the DA had in its correspondence to the Speaker wanted rules specifically developed for her removal.
“They say the rules must be developed for a particular person. That was possible under apartheid. It was called the Sobukwe clause, but you can’t have rules for one person unless you pursue an agenda,” he said.
Judge Saldanha said it was bizarre for Mpofu to make submission that the democratic Parliament made laws such as the Sobukwe clause.
“That is unbelievable,” he said, before asking if the analogy was not inappropriate.
He found it strange Mpofu suggested “that this Parliament makes rules akin to an apartheid state”.
An unperturbed Mpofu told the judge to wait, as he would still talk about the national legislature.
Mpofu denied making such a suggestion before charging that DA leader John Steenhuisen last year made a submission on draft rules to deal with Mkhwebane.
“You can’t draft rules that are submitted for a particular person unless driven by motive against that person. Parliament in its wisdom broadened (them) to cover the other heads (of Chapter Nine institutions).”
He also insisted that there was a difference between the DA and the 400-member Parliament. “This was at least an agenda of the DA transported to Parliament,” Mpofu said. Judge Saldanha was not convinced. The matter is set to continue today.