Public Protector case: 'Doubtful' that Democracy in Action acts in public interest, says Modise's lawyers

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Public Protector, Busisiwe Mkhwebane.
Public Protector, Busisiwe Mkhwebane.
Gallo Images/Lefty Shivambu
  • National Assembly Speaker Thandi Modise's legal counsel questioned the standing of Democracy in Action (DiA).
  • The DiA asked the court to declare that the National Assembly failed to pass legislation to remove Chapter 9 institution heads from office.
  • The DiA supports Public Protector Busisiwe Mkhwebane and once raised funds for her to pay a personal costs order.

National Assembly Speaker Thandi Modise's legal counsel on Thursday questioned whether Democracy in Action (DiA) represents the public interest in its application to have Parliament's rules for the impeachment of the head of a Chapter 9 institution scrapped.

Like Busisiwe Mkhwebane herself, DiA approached the Western Cape High Court with such an application. After the court heard her application from Monday to Wednesday, it started with DiA's on Thursday.

The NPO first came to the public's attention in mid-2019 with its "Hands off Mkhwebane" campaign to raise funds for her after she was slapped with a personal costs order.

It asked the court for a declaratory order that the National Assembly failed to pass legislation to remove the Public Protector and other heads of Chapter 9 institutions from office.

"Parliament has no power to develop new rules, without first passing legislation to that effect," said advocate Vuyani Ngalwana SC who appeared for DiA with former senior public prosecutor Nomgcobo Jiba.

DiA also wants the court to declare the laws governing the Chapter 9 institutions inconsistent with the Constitution as they make no provision for removing office bearers under appropriate circumstances.

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It said it brought its application in the public interest.

Modise, President Cyril Ramaphosa, Justice Minister Ronald Lamola and the DA are among the respondents.

Ngalwana said the Constitution directed organs of state to protect Chapter 9 institutions.

"Parliament has, in this removal proceedings, done nothing of the kind.

What is has in fact done, on the urging of a disgruntled opposition political party, that has long been baying for the blood of this Public Protector, is with undignified haste, to cobble a process for the removal of the Public Protector, disguised as one of general application and avoid the rigorous process that our Constitutional Court jurisprudence demands.

Advocate Andrew Breitenbach SC, appearing for Modise, said DiA lacked public interest standing and only the Constitutional Court could grant the relief it was seeking.

He added DiA's public interest standing was doubtful for two reasons, first its application was based on provisions outside the Bill of Rights.

Second, Breitenbach said: "DiA has not shown that it is genuinely acting in the public interest."

He added a case must be brought in the public interest on behalf of vulnerable people, and Chapter 9 heads were not vulnerable, as they all have the means to bring proceedings to court.

"As indeed, the Public Protector has, in her application earlier this week."

Breitenbach said in terms of the Constitution, only the Constitutional Court might decide whether the president or Parliament failed to fulfill a constitutional obligation.

"We further submit that the Constitution obliges the National Assembly to decide for itself on the details of the mechanism to give effect to Section 194."

He added there was no textual foundation that Parliament must make legislation for Section 194.

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Section 194 of the Constitution grants the National Assembly the power to remove a Chapter 9 head on the grounds of incompetence, misconduct or incapacity.

"The argument is bad in so many levels and respects, and it lacks any foundation in the text, and it's against the interpretation of an essentially indistinguishable provision," Breitenbach said.

He submitted rules were an appropriate measure to use.

Earlier, Ngalwana said the media, DA and politicians, including the speaker and executive, created a narrative that Mkhwebane was incompetent and this narrative also received "authoritative status from the Bench, including deeply wounding observations of the Constitutional Court on the character, not the work, the character of the Public Protector all based on procedural lapses".

"Faced with all these factors, justices, it is not hard to imagine why a judge hearing a case on the removal of the Public Protector from office may already - and I'm not saying that you are - I'm saying it is not hard to imagine that it may be perceived that after hearing this constant repetition in the media and the attacks and the unfortunate observations in some of the courts, that the judges hearing the case on the removal…"

Judge Elizabeth Baartman said: "Can I just interrupt you. This is not the case."

Ngalwana said what he was saying was that the current case was not about the character of the Public Protector.

Breitenbach said: 

We listened with some disquiet to our learned friend's opening remarks, they were not only irrelevant to the issues raised by his client for decision in this matter, but they may be understood that the courts that have criticised the incumbent in their judgments, including the majority of the Constitutional Court in the Reserve Bank matter, are participants in a propaganda campaign against her. We trust that he will dispel that interpretation in his reply.

Judges Lister Nuku and Mokgoatji Dolamo are hearing the application with Baartman.

The case will continue on Friday.
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