Public Protector Advocate Busisiwe Mkhwebane. Picture: Oupa Mokoena/African News Agency (ANA) Archives
Public Protector Advocate Busisiwe Mkhwebane. Picture: Oupa Mokoena/African News Agency (ANA) Archives

Speaker Thandi Modise denies bias in Busisiwe Mkhwebane removal process

By Mayibongwe Maqhina Time of article published Jun 9, 2021

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Cape Town - National Assembly Speaker Thandi Modise has denied that she was biased against Public Protector Busisiwe Mkhwebane for allegedly taking sides in her disputes with President Cyril Ramaphosa.

In her application before the Western Cape High Court, Mkhwebane accused Modise of siding with Ramaphosa in her dispute in connection with the Bosasa report instead of maintaining her independence.

Mkhwebane is seeking a declaration that the new rules for the removal of heads of Chapter Nine Institutions be found unlawful, unconstitutional, null and void.

She also wants the court to review and set aside the adoption of the new rules and/or review the decision to approve the motion calling for her removal, among other things.

Mkhwebane also wants personal costs order awarded on a punitive scale against Modise and that she personally pay 20% of the costs.

Arguing before the court, advocate Andrew Breitenbach cited an affidavit where Modise stated she had sought the review of Mkhwebane’s report in so far as it concerned her and the constitutional mandate of the National Assembly.

Modise had applied to intervene because certain of the remedial actions and monitoring measures amounted to impermissible prescription to the National Assembly’s manner of exercising oversight over the executive.

They were also incompatible with the ethics code that did not apply to the president and infringed on separation of powers.

“My intervention was proper and upholding the autonomy of Parliament,” said Modise in an affidavit read by Breitenbach.

Breitenbach also said there was no basis of her involvement as bias as the intervention had nothing to do with her personal circumstances but remedial action that was inappropriate with the constitution and the sphere of Parliament.

Turning to Mkhwebane’s application for personal costs order against Modise, Breitenbach said their submission was that her actions showed no fraud, dishonesty, vexatious abuse of court process, or repressible behaviour.

“The real question is whether it is appropriate for a senior official of the state to level charges of this nature against someone merely doing duty on a flimsy foundation.

“I leave to the court to be the judge of that,” he said.

He argued on several grounds dismissing arguments for the order of costs against Modise.

Breitenbach insisted that there was no dishonesty on her part.

“There is no basis with punitive costs or in her personal capacity. She has been performing her duties as required by the constitution and rules,” he said, adding that Modise was doing her work in good faith.

In papers before the court, Modise also said Mkhwebane has incorrectly invoked and applied the rule or presumption against retrospectively as the starting point of her interpretation of the new rules.

She said the charges in the inquiry would relate to actions or conduct of Mkhwebane in her capacity as the incumbent in the office of Public Protector in the period following her assumption of that office in October 2016.

Modise also said the charges were based merely on inaccuracies of the findings in her reports.

“The charges relate to her actions and conduct in relation to the relevant investigations and reports and in relation to the litigation about them.”

Arguing before court yesterday, Breitenbach said the charges related to her action and conduct in respect to her investigation and litigation.

He also dismissed argument by Mkhwebane that her impeachment was double jeopardy and none of the judicial reviews of her reports was criminal matter.

This was echoed by Modise who said the double jeopardy argument was misconceived.

“The present impeachment proceedings are not criminal proceedings either. None of the judicial reviews of reports were criminal matters and the cost orders were not punishment for criminal offences,” she said.

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Political Bureau

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