Public Protector Busisiwe Mkhwebane has taken her fight to stop the parliamentary process to remove her from office to the Western Cape High Court, in Cape Town. Court papers show that her application will be two-fold, starting with an application to interdict the process and then review the newly adopted rules. In part A of the application, which was filed on Tuesday, Mkhwebane wants the court to interdict National Assembly Speaker Thandi Modise from taking any further steps in the implementation of the processes envisaged in Section 194 of the Constitution and conducted in terms of the newly drafted parliamentary rules.
She also wants other respondents who have a conflict of interest interdicted from voting and/or participating in her removal from office. Mkhwebane further wants the court to order Modise to furnish her with the requested reasons for the approval decision of the motion made by DA chief whip Natasha Mazzone.
In Part B of the application, Mkhwebane wants the rules for her removal to be declared unlawful, unconstitutional, invalid, and null and void. She says the court should alternatively declare that the rules do not operate with retrospective effect and wants the decision of the National Assembly to adopt the rules reviewed and set aside.
Modise is the first respondent and others include President Cyril Ramaphosa, Chapter Nine institutions and parties represented in Parliament. In terms of the court papers, respondents intending to oppose the application should file an intention to oppose on February 10 and their answering affidavits on February 17. The application is set to be heard on March 17. In her affidavit, Mkhwebane said the application was about how the National Assembly and Modise should discharge their constitutional responsibilities and duties, and whether they did so properly in her pending removal.
“One of the cornerstones of the constitutional principle of accountability is to make it very difficult for politicians to control and remove, at a whim, those who are entrusted with the role of being the watchdogs of the public, be they judges or other holders of similar offices such as ombuds.”
She asserts that it was the very first time ever in the country’s young democracy that a serious attempt was being made to remove and dethrone the head of a watchdog institution by impeachment. “This is an application primarily for urgent interim interdictory relief primarily to prohibit the Speaker of Parliament (Thandi Modise), acting in her official capacity, from taking any further steps in the ongoing process in terms of Section 194 of the Constitution,” said Mkhwebane.
She also said she wanted a mandatory interdict directing Modise to furnish her with reasons for her decision to approve the motion against her before the finalisation of the Part B review papers “It is common cause that, despite demand, she has failed and/or refused to furnish me with adequate reasons and copies of the motion of the DA, with supporting documents.”
She charged that her application also concerned constitutional interpretation particularly of the words contained in Section 194 (1) of the Constitution, such as “misconduct” and “incompetence”. Mkhwebane also said her appointment was made out to be a problem from the beginning due to the fact that DA, which had opposed her appointment, labelled her with baseless accusations and insults, including the spurious and baseless allegation of being a “spy”. “The accusation is palpably false. Accordingly, I am confident that the conduct of the DA in making these accusations will ultimately be found to be unlawful, malicious and false.
She also said when the spy allegations did not work, the DA addressed letters to the Speaker of the National Assembly that she should be removed from office initially due to allegations that she was allegedly “incompetent” and not fit to hold office.
“The incompetence allegations were made to the exclusion of the independently determined excellent job that I have otherwise done since taking office coupled with the fact that the Office of the Public Protector has obtained unqualified audits from the auditor-general year after year under my tenure,” she said.
“The question that begs an answer is whether an ‘incompetent’ person could achieve the statistics that the Office of the Public Protector has achieved under my tenure,” Mkhwebane said. The protector described the DA’s accusation of incompetence as “demonstrably false, baseless and malicious”.
“The DA has been selective in that it does not give an overall or objective view of my performance as per the required and acceptable standards.” She cited successes by her office which since her appointment including 55 429 complaints lodged with the office, 40 240 complaints that were finalised, 135 investigation reports released, three investigations reports successfully reviewed, four investigations reports successfully defended in court and 62 investigations reports currently before the courts for review.
“If I were to be judged according to these statistics, my performance is clearly above board and excellent. “This is also coupled with the fact that for successive years I have received clean audits from the auditor-general.” Mkhwebane said the DA was not criticising her decision nor questioning her competence. “The only ground they have not yet invoked is incapacity.
“It would come as no surprise if they are also considering it as a last resort.” According to Mkhwebane, the rules for her removal were drafted in a manner that created the potential to undermine and compromise the independence and the proper functioning of her office as envisaged by the Constitution.
“The most embarrassing revelation was that these rules have in actual fact been ‘drafted’ by means of a cut-and-paste job from the recently adopted rules for the impeachment of the president, which were formulated in direct response to the well-known impeachment case judgment of the Constitutional Court.
Mkhwebane also said Modise dismally failed to uphold the Constitution by failing to be impartial in the execution of their duties. “It is my respectful submission that this conduct by the National Assembly is a betrayal of the rights of each and every citizen of the Republic of South Africa who entrusted the National Assembly to jealously guard and protect the Constitution. She also said it was not surprising that she learnt of the looming parliamentary removal proceedings against her through the media.
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