Public Protector Busi Mkhwebane File picture: Bongani Shilubane/ANA
Public Protector Busi Mkhwebane File picture: Bongani Shilubane/ANA

Modise to push with panel on Mkhwebane's motion

By Mayibongwe Maqhina Time of article published Aug 13, 2020

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Cape Town - Lawyers for Speaker Thandi Modise have argued in the Western Cape High Court that she will push through with the appointment of a panel to assess the motion calling for the removal of Public Protector Busisiwe Mkhwebane.

In arguments heard in court on Thursday, the lawyers said this would be done unless there was a court order blocking the Speaker from proceeding.

Modise's legal counsel, Advicate Andrew Breitnbach, said this was the action the speaker would like to pursue.

"The Speaker has not appointed anyone to the independent panel, which is the next step required by the rules.

“She is busy with that process and will continue with it unless interdicted by this honourable court," Advocate Andrew Breitenbach said.

This emerged when Breitenbach argued during the second day of the application sought by Mkhwebane.

In February, Modise approved a second motion from DA chief whip Natasha Mazzone and then started a process of appointing a panel to assess prima facie in the motion.

This had led to Mkhwebane to launch the court action on an urgent basis but it was postponed with consent of parties when Covid-19 pandemic broke out.

Modise, President Cyril Ramaphosa, Chapter 9 institutions and 12 parties represented in Parliament are respondents.

When Modise revived the appointment of the panel in June, the court case was enrolled in the court roll and set for a hearing the past two days.

In her application, Mkhwebane wants to interdict Modise from taking further steps in her removal from office until she obtains relief wherein she wants to set aside the rules and have them declared unlawful and unconstitutional.

She also wants a final order that prohibits respondents who have conflict of interest to participate in her removal from office, and those who were conflicted to declare their interest to Modise.

In his argument, Breitenbach said the main proceeding Mkhwebane would bring in November provided her with suitable remedy.

He also said Mkhwebane has not taken steps to advance her main application for relief sought in Part B of her application of notice of motion both in her founding affidavit and her council's heads of arguments.

The individuals she deemed to have a conflict of interest in the matter were not in her affidavit, Breitenbach said.

He contended that there was no point in granting an interim interdict in order to suspend the process of removing Public Protector Busisiwe Mkhwebane from office.

"Granting an interim interdict to suspend the removal of Public Protector will preclude the National Assembly from carrying out its constitutionally mandated accountability function for what could turn out to be a lengthy period of time," Breitenbach said.

He narrated to the court the events that led to the court challenge by Mkhwebane, including some adverse court findings made by various courts with some forming part of the motion submitted by Mazzone.

He noted that when the motion was referred to the justice portfolio committee, there were no rules in place and these were formulated and adopted in December 2019.

He dismissed the notion of unfairness when it was raised the rules could not be implemented retrospectively.

"If she is right that the rules do not apply to conduct which predate 3 December last year, then she should be reinstated," Breitenbach said.

But he said there was no way there could not be proceedings against Chapter 9 office holders for what they did before 3 December because rules regulating the process were not in place.

The hearing will be continued on Tuesday when Mkhwebane's legal representative will respond to arguments made by Breitenbach, Ramaphosa and DA legal counsels.

At the start of proceedings, the parties agreed on tentative trial dates of 24 to 26 November subject to approval by Judge President John Hlophe for part B application by Mkhwebane to review Modise's decision to give the go ahead for the process for the removal of Mkhwebane from office and finding the rules unconstitutional.

Political Bureau

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