Public Protector Busisiwe Mkhwebane. Picture: Jeffrey Abrahams/ANA Pictures
Public Protector Busisiwe Mkhwebane. Picture: Jeffrey Abrahams/ANA Pictures

Do not allow Mkhwebane’s removal from office, Mpofu pleads in court

By Mayibongwe Maqhina Time of article published Aug 12, 2020

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Cape Town - The legal team of Public Protector Busisiwe Mkhwebane has called on the Western Cape High Court not to allow for her removal from office.

Mkhwebane's counsel, Advocate Dali Mpofu said the court should not allow the process to remove Mkhwebane from office to continue because doing so would be prejudicial.

"It is not in the interest of justice to have a process that is doomed to be proceeding as if nothing happened," Mpofu said on Wednesday during legal proceedings in the Western Cape High Court.

Mpofu made the statement when he was presenting the matter where Mkhwebane sought to interdict the proceedings against her pending another application to review the parliamentary rules.

He said there were grounds to attack the constitutionality of the rules, which were being implemented by National Assembly Speaker Thandi Modise.

Mpofu insisted the rules were unconstitutional.

"The rules are an experiment. This is a very complex matter of constitutional importance," he said. "We have not had an impeachment process that has taken place in our young democracy."

He said the rules were modelled along cut and paste from an impeachment case of former president Jacob Zuma that never went ahead.

"Just as much as it was not possible to have impeachment process where there are no rules, you can't have impeachment when there are invalid rules."

Mpofu said although their prayer was for review and setting aside of the rules, the primary relief being sought was in part a declaration of constitutionality.

He also said there were also the allegation of mala fide which were denied by some respondents.

"There is no doubt that the DA has had a vendetta that is traced back to day one of the public protector's appointment and even before her selection,“ said Mpofu.

However, Judge Vincent Saldanha questioned what he meant by vendetta when the official opposition had a constitutional responsibility to hold Mkhwebane accountable.

"They carry their constitutional responsibility," the judge said.

Mpofu disagreed, before raising issues of ulterior motive on the part of the DA.

"The DA say that Ms Mkhwebane should not have been appointed. They call her a spy, which is false. There are separate proceedings around those spy allegations."

He also argued the DA had called the Speaker to develop rules for the removal of Mkwebane.

Judge Saldanha said it was it was bizarre Mpofu made that submission, adding Parliament made rules in carrying out its constitutional rules.

He took Mpofu to task for making an analogy of Parliament for having acted like the apartheid government to formulate the Sobukwe clause.

"Is the analogy not inappropriate?“ Judge Saldanha asked.

Mpofu said he was talking about the DA and would later discuss the question of Parliament.

When the judge asked him if he was accusing Parliament of introducing the Sobukwe clause – a special law passed targeting the founding president of the PAC, Robert Mangaliso Sobukwe – Mpofu denied this.

"I did not. The DA had a similar agenda in pursuance of the rules with the intention of being a Sobukwe-type clause. I raise it in a particular context," Mpofu added.

The judge then asserted the rules under attack were made by the democratic Parliament and said the role of the DA was irrelevant.

In reply, Mpofu said: "If the motive is irrelevant, that is fine."

Political Bureau

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