Mkhwebane fights impeachment rules, tells court: 'Thandi Modise is standing with the DA'

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Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Gallo Images/Lefty Shivambu
  • Public Protector Busisiwe Mkhwebane claims Speaker of the National Assembly Thandi Modise stood with the DA in handling her removal proceedings.
  • Mkhwebane's application to have the impeachment rules for a Chapter 9 head declared unconstitutional started on Monday.
  • The matter will proceed on Tuesday and Wednesday.

Public Protector Busisiwe Mkhwebane's attempt to quash Parliament's rules for the removal of a Chapter 9 head, such as herself, got under way in the Western Cape High Court on Monday, with her legal counsel, advocate Dali Mpofu SC saying Speaker of the National Assembly Thandi Modise "showed all the signs of standing with the DA".

Mkhwebane is asking the court to declare the rules that the National Assembly adopted in December 2019 - for the removal of the head of a Chapter 9 institution - unconstitutional and invalid.

This is the second part of her proceedings.

READ | Mkhwebane believes she will be cleared of wrongdoing after damning panel report

The first part, an application to stay the National Assembly's removal proceedings against her until the current application was heard, was dismissed in October.

In March, the Constitutional Court didn't grant her leave for a direct appeal of the Western Cape High Court's ruling.

Thandi Modise
Thandi Modise.
City Press City Press

Starting his argument, Mpofu said the central question in this case was whether the National Assembly's rules were consistent with the Constitution.

"This case is not about the guilt of the Public Protector," he said, adding that ironically the court was precluded from pronouncing on that.

POLITICS THIS WEEK | Mkhwebane's last-ditch attempt to prevent inquiry

However, "nothing could be further from the truth" that the court can't encroach on Parliament, Mpofu said.

He said the court was the only institution in the country with a right and duty to determine constitutionality.

Mpofu also said it was not relevant to the court proceedings at which stage the impeachment proceedings against Mkhwebane are.

In March, the National Assembly adopted a motion to impeach Mkhwebane after an independent, three-person panel recommended such. The committee that will handle the impeachment inquiry hasn't been constituted yet, and the National Assembly was currently in recess and would only reconvene on 16 August.

Former Constitutional Court judge Justice Bess Nkabinde chaired the panel.

One of Mpofu's reasons for the unconstitutionality of the rules was that it allowed the Speaker of the National Assembly to appoint a judge to the panel.

Mpofu said:

The question is, is it constitutionally permissible for Parliament, or the National Assembly, to adjudicate some of that functionality to a judge? Where does the Speaker get the right to do that?"

Mkhwebane was also asking the court for a personal costs order against Modise, with Mpofu questioning Modise's partiality in the removal proceedings.

"The Speaker showed all the signs of siding with the DA," said Mpofu, who recently represented Modise. "She's the worst speaker since Louis la Grange."

Louis la Grange was an NP member and Speaker of the apartheid Parliament from 1987 to 1991.

Mkhwebane accused the DA of having had a "vendetta" against her ever since she took office.

Judges Lister Nuku, Elizabeth Baartman and Mokgoatji Dolamo, are hearing the case.

Proceedings were expected to resume on Tuesday when the Speaker and DA's arguments would be heard. Wednesday was also set aside for the matter.

Modise is the first respondent and the president the second. All heads of Chapter 9 institutions and also all parties represented in Parliament, albeit not all of them are participating in the matter. The DA is opposing Mkwebane's application, while the ATM, UDM and PAC supported it.

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