Mkhwebane told to withdraw accusations or face another legal bill

Public protector Busisiwe Mkhwebane must withdraw her “ulterior purpose” accusations, or face the prospect of being ordered, yet again, to personally pay another expensive legal bill, National Assembly speaker Thandi Modise said.

The speaker also dismissed Mkhwebane’s argument that impeaching her over things she had done during her investigations or statements made in her reports would infringe on the constitutionally enshrined independence of her office as a “fallacy”, “absurd” and incompatible with the accountability provisions contained in the constitution.

Modise made the arguments in court papers filed in the Western Cape High Court last week in Mkhwebane’s urgent court bid to halt the possible parliamentary inquiry into her fitness to hold office.

Modise becomes the latest in a long line of high-profile officials who have asked for — or been granted — personal costs orders against the public protector.

Last week, lawyers for SA Revenue Service commissioner Edward Kieswetter contended that the way in which the public protector had conducted herself in her dispute with the revenue service tax agency over her attempt to subpoena former president Jacob Zuma’s tax information justified a punitive costs order being issued against her.

In Mkhwebane’s court bid to urgently stop any potential parliamentary inquiry from proceeding, she argues that, among other things, Modise’s decision to approve a motion that could lead to her facing such an inquiry “points to the narrative that the speaker is acting with an ulterior motive”.

“I emphatically deny that I have been acting with an ulterior motive,” Modise said in her court papers.

“I trust that ... advocate Mkhwebane will withdraw this unfortunate allegation.

“Should she, however, persist with it, I shall ask this honourable court, as a mark of its displeasure, to make a punitive costs order against advocate Mkhwebane in her personal capacity.”

This week, the high court in Pretoria will rule on President Cyril Ramaphosa’s challenge to Mkhwebane’s explosive report on his CR17 election campaign funding, which she found was implicated in money-laundering.

Mkhwebane has accused Modise of “taking sides” with Ramaphosa in this case, because the speaker’s office had joined the president in fighting to overturn some of the remedial action contained in the public protector’s report.

Modise is adamant that this accusation is baseless, because she and her deputy have their own serious concerns about the legality of Mkhwebane’s directives — which they contend “amounted to impermissible prescriptions to the National Assembly about the manner in which it exercises oversight over the executive”.

Mkhwebane had demanded that parliament take action against Ramaphosa for “deliberately misleading” the National Assembly about a R500,000 campaign donation he received from Gavin Watson, the now deceased CEO of corruption-accused facilities management company Bosasa.

She also demanded that he be ordered to disclose his campaign funders to parliament.

Modise maintains that Ramaphosa is not an MP, and parliament can therefore not take action against him.

Mkhwebane contends that the multiple court rulings made against her in which her honesty, competence and impartiality have been questioned cannot be a basis or a finding that she is guilty of impeachable conduct.

Modise agrees that the National Assembly will need to make its own determinations about the scathing judgments made against Mkhwebane, but any potential committee deciding whether she should be impeached “may and probably will derive guidance from the judges’ reasoning”.