DA has 'vendetta' against Public Protector Busisiwe Mkhwebane, charges her legal counsel

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  • Public Protector Busisiwe Mkhwebane's legal counsel, advocate Dali Mpofu argued in court that the DA has a vendetta against his client.
  • Mkhwebane wants the court to halt Parliament's removal proceedings against her and have the removal rules declared invalid.
  • The case was provisionally set down for a hearing in March, but will only be heard now due to the Covid-19 pandemic.

The DA has had a "vendetta" against Public Protector Busisiwe Mkhwebane since day one, and National Assembly Speaker Thandi Modise's "attitude leaves much to be desired", Mkhwebane's legal counsel, advocate Dali Mpofu SC, argued in her bid to stop Parliament's removal proceedings.

Mkhwebane's application was provisionally scheduled for a hearing in March, but all parties agreed to suspend it due to the Covid-19 pandemic. It was finally heard on Wednesday.

Mpofu told the court his team had set the wheels in motion to have the case heard after Modise announced in June she was proceeding with the next step in the removal proceedings, which entails a three-person panel to determine whether there is a prima facie case for Mkhwebane's removal.

The court battle began in February after Mkhwebane filed an urgent bid in the Western Cape High Court seeking an interdict to halt the parliamentary process to remove her from office, which was set in motion by Modise's approval of a motion by the DA.

ALSO READ | Mkhwebane vs Gordhan: 'Not a shred of evidence Gordhan involved in establishment of illegal unit'

The interdict was only the first part of the application, Part A. She is also asking the court to set aside the rules for the removal of Chapter 9 institution heads, such as the Public Protector, which the National Assembly adopted in December, and rule it unconstitutional and invalid, which is Part B.

The court only dealt with Part A on Wednesday.

Prima facie 

Last year, after an earlier motion by the DA to remove Mkhwebane, the National Assembly drafted rules for the removal of a head of a Chapter 9 institution, like the Public Protector. The National Assembly adopted the rules on 3 December 2020 and three days later the DA brought its first removal motion.

Mpofu argued these rules were prima facie unconstitutional.

"One of the things we know for sure is you can't have an impeachment when there are no rules to govern the process," he said. "Similarly, you can't have impeachment when there are invalid rules."

Mpofu said there was "no doubt" the objective evidence indicated the DA had had a "vendetta" against Mkhwebane from day one.

Judge Vincent Saldanha asked what he meant by vendetta.

"The DA said all they're doing is carrying out their duty under the Constitution to hold the Public Protector accountable," Saldanha said. "This is not a cloak and dagger process, this is an open process."

"It's what they say, it can't only be based on their say so."

He added the DA was entitled to lay a complaint, to which Mpofu said being entitled did not mean it did not have an ulterior motive. Mpofu said the DA had called her a spy, adding she was not one.

Turning to Modise, Mpofu said: "We have said the attitude of the speaker leaves a lot to be desired."

They complained Modise had not ceded to their overtures to resolve the matter amicably and Mkhwebane had to learn in the media Modise approved the removal motion without the charges being put to her.

"Even the most horrible criminal gets told: 'You're being charged with this and that'. They don't find it on some billboard as they're driving to work."

Mpofu also argued Modise had taken "up the cudgels on behalf of the DA" and was not impartial.

He claimed the majority of MPs supported their application.

"Where's the evidence of that?" asked Saldanha. Mpofu could not provide any.

He also questioned the fairness of the process, and the rules not allowing a Chapter 9 head legal representation.

The hearing will continue on Wednesday afternoon and Thursday.

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