Public Protector shouldn't be used as political football, says counsel for ATM and UDM

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Public Protector Advocate Busisiwe Mkhwebane.
Public Protector Advocate Busisiwe Mkhwebane.
Antonio Muchave, Gallo Images, Sowetan
  • Busisiwe Mkhwebane's application for interdicts against Parliament and Cyril Ramaphosa was heard on Wednesday.
  • Advocate Dali Mpofu SC said suspending Mkhwebane would be "injurious to [her] reputation, dignity and self-worth".
  • The ATM and UDM's counsel said Parliament shouldn't be allowed to undermine the court with reference to the so-called "sub judice rule".

Counsel for the ATM and UDM urged the Western Cape High Court to prevent Parliament from using the Public Protector as a "football for political opponents".

On Wednesday, the Western Cape High Court heard Public Protector Busisiwe Mkhwebane's application for interdicts against Parliament continuing with its impeachment process and President Cyril Ramaphosa suspending her.

In February, the Constitutional Court effectively gave Parliament the green light to go ahead with the impeachment, provided that Mkhwebane was afforded an attorney.

Mkhwebane has subsequently approached the Constitutional Court unsuccessfully to ask it to rescind that order.

READ | Mkhwebane hits out in full-throttled attack on ConCourt, charges there is a grand plot against her

After Parliament's Section 194 Committee decided to proceed with the impeachment proceedings, and Ramaphosa asked her to provide reasons why she should not be suspended, she approached the Western Cape High Court for interdicts.

After the Constitutional Court turned down her rescission application, she approached the court to rescind that decision.

However, there was a second part to her proceedings in the Western Cape High Court – an application to declare Speaker Nosiviwe Mapisa-Nqakula's letter to Ramaphosa, which set her possible suspension in motion, unlawful.

Advocate Dali Mpofu SC, on behalf of Mkhwebane, said they would still ask the court for the interdicts, even if there wasn't the application to rescind the rescission decision, because of that second part.

Dali Mpofu
Advocate Dali Mpofu.

Mpofu said Mkhwebane's suspension would be punitive.

Judge Derek Wille asked how he could say it was punitive, as the incumbent [Mkhwebane] would be suspended, not the office [the institution of the Public Protector], and the incumbent would receive full pay.

Mpofu conceded that Mkhwebane would receive full pay, but said the suspension of anybody, including Mkhwebane, was "ipso facto [by that very fact] punitive" and "draconian".

"To be suspended from work anywhere is injurious to your reputation, dignity and self-worth as a human being," he said.

READ | Are you saying Chief Justice Zondo is lying? - judge seeks clarity from Mpofu in Public Protector case

Advocate Thabani Masuku SC, for the ATM and UDM, who came out in support of Mkhwebane, argued that Parliament continuing with the impeachment proceedings, while there are court matters pending, would be in contravention of the so-called sub judice rule, rule 89 of the National Assembly.

After a question from Wille, he said this would apply even to a rescission application of a rescission decision.

"The Constitutional Court must still decide," he said.

Masuku argued that the National Assembly should not conduct itself in a way that undermined the court and the Public Protector.

"The Public Protector shouldn't be the football of political opponents," he said.

"The law of sub judice is critical for the proper functioning and the lawful functioning of that committee. So, you should grant an interdict on the basis that there is a real risk that it is going to continue this process before the courts have finalised giving its binding judicial opinions on it."

Masuku said adhering to the sub judice rule wouldn't impede holding the Public Protector to account.

"You are permitted to prevent the Public Protector from being subjected to an abusive process, which disregards the applications of the rules that Parliament itself have adopted."

He added: "Do not allow Parliament to undermine this court, or any court."

Proceedings will continue before a full bench of Judges Nathan Erasmus, Mokgoatji Dolamo and Wille.

Counsel for the Speaker of Parliament, Ramaphosa and the DA will offer their arguments.

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