Public Protector Busisiwe Mkhwebane is gunning for Thandi Modise and wants the National Assembly speaker to pay up for her handling of the impeachment saga.
Mkhwebane’s legal challenge to the rules governing the impeachment process she’s currently facing kicked off in the Western Cape High Court in Cape Town on Monday, when her lawyer, advocate Dali Mpofu SC, argued Modise should be slapped with a personal costs order and made to dig into her own pocket to cover 20% of the legal bills the case had racked up.
Mpofu argued that as speaker, Modise was duty-bound to remain impartial but had in this case “shown all the signs of siding with the Democratic Alliance [DA]”, which brought the motion for Mkhwebane’s removal in the first place.
“This court has a duty to send a message to officials that they must not abuse their office and seek to even take sides … You cannot have a situation where the speaker is taking the cudgels,” he charged.
The DA brought the motion last February and it centres on Mkhwebane’s investigations into the bailout the SA Reserve Bank provided for what was then Bankorp during the late 1980s and early 1990s; as well into the Vrede dairy farm scandal and into the Financial Sector Conduct Authority (FSCA).
All the reports that Mkhwebane penned on the back of these investigations have – at least in part – been set aside by the courts, which have also often been scathing of Mkhwebane and even slapped her with personal costs orders.
Mpofu on Monday argued the rules were unconstitutional in that they provided for impeachment on the grounds of “temporary” incapacity – which he labelled an “absurdity” and an attempt to amend the Constitution “through the back door” – as well as that they could not, in any case, be applied retrospectively.
He also argued the rules limited a chapter 9 institution head’s rights to full legal representation, with no justification for this offered up.
“The National Assembly is not allowed to simply limit the right to full legal representation without justification … They must say what in the Constitution justifies that limitation,” he levelled. “You can’t do that. You can’t limit a right just for the sake of it”.
In addition, Mpofu argued the process was unfair in that the public protector had not been notified after Modise had taken the decision that the motion for her removal was in order – let alone given an opportunity to make any representations.
“In what world can we have a public protector in respect of whom the speaker releases a media release to say she’s going to be impeached when she doesn’t know, when she just reads it in the newspaper like everybody else?” he asked.
As far as Modise went, meanwhile, Mpofu put up 10 grounds on which he argued a personal costs order against the speaker was warranted – “perhaps most significantly”, he said, was her refusal to suspend the impeachment process until the court proceedings had been finalised.
Last year, the public protector launched an urgent application for an interdict to stop Modise from forging ahead with the process pending the determination of her challenge to the rules.
She was ultimately unsuccessful but, argued Mpofu on Monday, there would have been no need for that application and the matter would likely be done and dusted by now had Modise simply agreed to suspend the process from the get-go.
“Why must we waste taxpayer money fighting this, when actually it could have been done in a few months?” he asked.
The case is expected to continue on Tuesday.