Embattled public protector Busisiwe Mkhwebane, who is facing a parliamentary impeachment inquiry, has launched a legal attack on National Assembly speaker Thandi Modise, accusing her of bias and demanding that she personally pay legal costs in court battles to halt the process.
On Friday a full bench of the high court in Cape Town effectively vindicated Modise’s stance by dismissing with costs Mkhwebane’s urgent bid to halt the impeachment inquiry initiated through a parliamentary motion launched by DA chief whip Natasha Mazzone.
“I am advised that it will be amply demonstrated that in numerous ways, the conduct of the speaker has been reckless, grossly unreasonable and in bad faith,” Mkhwebane stated in court papers filed last week.
Mkhwebane, ordered to personally pay 15% of legal costs involved in the overturning of her disastrous Reserve Bank report and 7.5% of the costs in the successful challenge to her “whitewash” report of the Gupta-linked Estina dairy project scam, argues that Modise must pay 20% of the costs of her latest court battle with parliament.
Among the reasons Mkhwebane advanced for demanding that Modise be saddled with a fifth of her legal bill was the speaker’s refusal to suspend the 17-step process that parliament has developed to deal with the impeachment of a chapter 9 institution head, until the public protector had challenged the constitutionality of that process in court.
That challenge is likely to end up in the Constitutional Court and could take years to resolve.
The DA has said there is ample evidence Mkhwebane is guilty of misconduct and evidently incompetent. But she is adamant that the multiple court rulings against her are “opinions” and cannot be used as a basis for her removal.
Mkhwebane has accused the DA of pursuing a “relentless campaign to remove me from office. motivated by bad faith, ulterior and improper motives and a personal vendetta”.
Judge Vincent Saldanha, on behalf of three judges, ruled on Friday that Mkhwebane failed to make a proper case for why Modise should be interdicted from pursuing the impeachment inquiry process against her.
Saldanha stressed that, even if Mkhwebane had met the requirements needed to justify his court interdicting parliament from proceeding with an inquiry, he would have exercised his discretion to not grant such an order “given the severity of the charges that have been preferred against her and which have been based on trenchant findings by none higher than the Constitutional Court with regard to her conduct, her honesty and her methodology of investigation”.
“Moreover, a process for the impeachment of an office-bearer of a chapter 9 institution is not taken lightly and is a serious mechanism for the accountability of the office-bearers of chapter 9 institutions under the constitution,” Saldanha said.
Should Mkhwebane be granted the interdict she sought, it would effectively block parliament from holding any other office-bearers of Chapter 9 institutions accountable, the judge said, adding that “such consequences could not be countenanced”.
It is unclear whether Mkhwebane will seek to appeal against the high court’s ruling, which would enable parliament to proceed with an inquiry into her fitness to hold office while she waits to argue her constitutional challenge to its rules in February.
In that case, Mkhwebane contends that Modise should be personally ordered to pay her legal costs because she failed or refused to take action against MPs who the public protector has accused of “prejudging” her guilt. According to Mkhwebane, Modise “sought to give unsustainable excuses and justifications for such unlawful conduct”.
Mkhwebane has further argued that “all members of the National Assembly who have pronounced judgment on the specific issue of my removal and those individuals involved in ongoing litigation against my office” should be forced to recuse themselves from the parliamentary process that could lead to her removal from office.
She has specifically demanded that both the DA and Modise be ordered to recuse themselves from that process.
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