Protector v Speaker: cost threats
Legal sparks fly amid Modise’s acceptance of DA motion against Mkhwebane
THE PUBLIC protector and National Assembly Speaker Thandi Modise are threatening each other with punitive costs as they battle over the motion for an inquiry into the fitness of Busisiwe Mkhwebane’s fitness for office.
Mkhwebane was the first to make a threat in a letter she sent Modise via her lawyers last Thursday, accusing her of unlawful actions and insists she acts on several of her demands.
“Your failure to act as demanded will be brought to the attention of the court and appropriate relief will be sought, including punitive costs and the granting of the Part A relief on a default judgement basis,” reads the letter from Seanego Incorporated.
But Modise fired back, through the State attorney, advising Mkhwebane to amend her urgent relief she is seeking in court and supplement her founding affidavit.
“The State attorney warned advocate Mkhwebane that should she persist with her application for urgent relief in its present form on 17 March 2020, the Speaker will request that the application be dismissed with punitive costs on the ground that her persistence will entail the incurrence of fruitless and wasteful expenditure of public funds,” Modise’s spokesperson Moloto Mothapo said yesterday.
This takes place against the backdrop of an interdict at Cape Town High Court where Mkhwebane wants Modise interdicted from going ahead with the process to remove her from office.
She also wants Modise, among others, to recuse herself from the court act as a conflicted person, and the court to declare the rules to remove from office heads of Chapter 9 Institutions
unconstitutional and set aside Modise’s decision.
The latest drama has been sparked by Modise’s acceptance of the revised motion tabled by DA chief whip Natasha Mazzone on February 21 after withdrawing the one she submitted in December.
Mkhwebane’s lawyer took a swipe at Modise’s “intransigent determination” to proceed with the motion despite the pending application for interdict.
The lawyers said Modise’s acceptance of the new motion shows clear intention to act contrary to Mkhwebane relief in court.
“The application is therefore even more urgent now than ever before.”
The law firm demanded that Modise file her answering affidavit, which should respond to allegations of her unlawfulness.
Apart from insisting on Modise to suspend the removal process, they demanded that she furnishes Mkhwebane with reasons to declare the revised motion as being “in order”.
Mothapo said Modise has responded to Mkhwebane denying that she had acted unlawfully in the process to remove her from office.
The spokesperson confirmed that Modise has not filed her answering affidavit. “The Speaker’s answering affidavit will include giving reasons for her decision that Ms Mazzone’s motion of 21 February 2020 is in order.”
He said should Mkhwebane continue with her application containing her court papers in the current form, she will file papers on March 3. “If advocate Mkhwebane delivers her supplementary founding affidavit, the Speaker will make and deliver her answering affidavit as soon as practically possible after receiving the supplementary affidavit,” Mothapo said.