Thandi Modise 'being unfair and siding with DA' over Mkhwebane, court hears

12 August 2020 - 20:06 By ANDISIWE MAKINANA
Public protector Busisiwe Mkhwebane is fighting for her job in court.
Public protector Busisiwe Mkhwebane is fighting for her job in court.
Image: Gallo Images / Beeld / Deaan Vivier

Advocate Dali Mpofu has accused National Assembly speaker Thandi Modise of bias and unfairness against public protector Busisiwe Mkhwebane - and of siding with the Democratic Alliance (DA) in its call for her removal from office.

Arguing on behalf of Mkhwebane during a virtual hearing of the public protector's application to interdict parliament from considering the motion, Mpofu also charged that the DA has a vendetta against his client. He said this started during the process to select former public protecter Thuli Madonsela's successor.

The matter, which is divided into two parts, was heard in virtual sitting by a full bench of Western Cape High Court judges on Wednesday. In part one, Mkhwebane seeks an interim interdict to suspend the removal process, pending a judicial review of Modise's decision to accept the motion for her removal and the lawfulness of the new rules.

“We say that what should be interdicted is the taking of any further steps in the implementation of the process envisaged in section 194 of the constitution and conducted in terms of the impugned rules,” said Mpofu on Wednesday.

Section 194 provides that the public protector, the auditor-general or a member of a commission established by Chapter 9 of the constitution may be removed from office only on the ground of misconduct, incapacity or incompetence.

Mkhwebane approached the court on an urgent basis in February after a motion by DA chief whip Natasha Mazzone seeking her removal from office. She is challenging the constitutionality of the National Assembly rules regarding the removal of office bearers of Chapter 9 state institutions.

The matter was set to be heard over two days starting on March 26, but was put on hold because of the Covid-19 lockdown.

Mpofu told the court on Wednesday that besides the moratorium imposed by the lockdown, Modise rejected their request to have a moratorium on the implementation of the new rules until the court has pronounced on their lawfulness.

“The attitude of the speaker leaves a lot to be desired,” said Mpofu. “A reasonable speaker would welcome the opportunity for rules to be tested in court, just like legislation is tested in court, and then proceed on the comfortable basis that these rules have been sanctioned by the court.”

Mpofu said Modise had not only repeatedly rejected their overtures but he accused her of acting arbitrarily, that she had been unfair and biased including siding with the DA on this matter.

He said Modise never informed Mkhwebane when the first motion and complaint against her was laid by the DA, and that the public protector only learnt about the process against her in the media. Modise also refused to share a copy of the complaint with the public protector, he said.

“What about her dignity? That leaves a lot to be desired. A reasonable speaker does not get into the arena and take a position, including the refusal to put the proceedings on hold,” he said.

“The speaker, who is supposed to be neutral, is taking cajoles on behalf of the DA, she is even defending the actions of the DA. She is supposed to be impartial.”

Mpofu accused the DA of having a vendetta against Mkhwebane, which started even before her appointment to the position.

“The DA says Mkhwebane should not have been appointed. They insult her and call her a spy, which is false. There are separate proceedings around those spy allegations, they say perpetually in their complaints although peg it on pronouncements by the courts – from day one, even before she did anything, she should have been removed,” he said.

“If somebody who says that isn't pursuing an agenda and justifies it, then nothing ever will be evidence.”

'The Sobukwe Clause'

Mpofu clashed with judge Vincent Saldanha when he compared the drafting of rules to remove heads of Chapter 9 institutions to the apartheid-era "Sobukwe Clause", which empowered the minister of justice to prolong the detention of any political prisoner indefinitely.

The clause was specifically enacted with the intention to authorise the arbitrary extension of Sobukwe's imprisonment.

Mpofu had told the court that in their correspondence, the DA said rules should be developed specifically for a particular person.

“That was possible under apartheid - it was called the 'Sobukwe Clause',” he said.

“What is needed is a general set of rules. You can't have rules that are designed for a particular person unless you are pursuing an agenda or a vendetta against that particular person.”

But Saldanha took issue with the comparison, saying it was “just bizarre” that Mpofu would make a submission that parliament in the constitutional democracy, carrying out its constitutional responsibilities, made rules such as the Sobukwe clause.

“That is unbelievable. The analogy that you make is that parliament acted like the apartheid government. You have to justify how do you possibly accuse this government or this parliament of introducing the Sobukwe clause?”

Mpofu explained that all he was saying was that the DA had an agenda which was in pursuance of draft rules that had the intention of being a type of rule that was similar to the Sobukwe clause.

“I raised it in a particular context. If it was not for the DA's relentless pursuit of Mkhwebane, we would not be here,” he said.

The speaker has mapped out a 17-step process to be followed. She recently admitted to having difficulty putting together the three-member panel that would kick off the investigation into whether Mkhwebane is fit to hold her office.

The appointment of the panel is step 4 of the plan, according to Mpofu, who described the rules as a sort of an experiment. He said their case was about challenging the constitutional validity of the rules and their primary relief is a declarator of unconstitutionality.

He said the rules are unconstitutional because they breach the separation of powers principle by asking for a judge to sit as one of the panellists.

He also expressed concern about fairness saying that the rules allow the speaker to not to inform the accused person of the process until the third of 17 stages in Mkhwebane's case was “vintage arbitrariness and unfairness”.

Mpofu said the denial of legal representation during the inquiry was also unconstitutional and that it was unlawful to apply the new rules retrospectively.

The matter continues on Thursday.