Public Protector vs Parliament: DA asks for punitive cost order against Mkhwebane

In Mkhwebane’s application to interdict Parliament’s removal proceedings, she accused the opposition party of waging a vendetta against her since before she took office.

On Wednesday, advocate Dali Mpofu, representing the Public Protector, told the Western Cape High Court the DA had a “vendetta” against Mkhwebane since day one.

He also said Speaker of the National Assembly Thandi Modise’s “attitude leaves much to be desired” and that “she took up the cudgels on behalf of the DA”.

This meant, according to Mpofu, that the process to remove Mkhwebane is male fide ( with malicious intent).

On Thursday, advocate Andrew Breitenbach SC responded on behalf of Modise, and advocate Steven Budlender SC on behalf of the DA.

Breitenbach said Mkhwebane’s court papers illustrate a “thinly disguised undertone of contempt” towards MPs, and says it is not proper for her to say a motion for her removal is a “nuisance”.

“There is no evidence whatsoever that the motions brought are frivolous or vexatious,” he said.

He said Modise had a legal duty to process the motion for Mkhwebane’s removal, which was brought by DA chief whip Natasha Mazzone.

“And that is all she sought to do.”

He said the Speaker was merely doing her job and it is “distressing” to be accused of maliciousness by someone of Mkhwebane’s office.

On the allegation that she took up the cudgels on behalf of the DA, Breitenbach said Modise came to the defence of Parliament, of which the DA are members.

“It is distressing that a senior office-bearer bandies about allegations of bad faith with no evidence,” he said.

He is not asking for a punitive cost order against Mkhwebane.

Budlender, however, asked for a punitive cost order, using the allegation that the DA has been waging a vendetta against Mkhwebane as motivation.

If successful, it will not be the first punitive cost order against Mkhwebane.

“All my clients sought to do is exercise their rights in terms of the Constitution and, arguably, their responsibilities because if they have a genuine concern that the Public Protector does not comply with the requirements on the basis of her conduct in office, they have a responsibility to raise that,” Budlender said.

He said the DA has been “remarkably consistent” that the court’s findings on Mkhwebane’s conduct in the South African Reserve Bank case should warrant her removal.

Mpofu argued that the DA supported drafting the rules for the removal of a Chapter 9 head, specifically to get rid of Mkhwebane.

Budlender pointed out that Mkhwebane contended there should be rules for the removal of a Chapter 9 head.

“The suggestion that there has been a vendetta by my client has simply not been shown,” Budlender said.

He said, furthermore, Mkhwebane had asked the court that their defence of the assertion they had been waging to be struck from the record.

“This is not an appropriate way for litigation to be conducted by a Chapter 9 head,” he said.

The hearing was conducted through a virtual platform and, due to technical difficulties, Mpofu couldn’t deliver his reply. It will be done on Tuesday.

The parties have also agreed that Part B of Mkhwebane’s application will be heard on 24 and 25 November.

In Part B of her application, she asks the court to declare the rules for the removal of a Chapter 9 head unconstitutional and invalid.

She brought the application in February, after Modise approved Mazzone’s motion.

The National Assembly adopted the rules for the removal of a Chapter 9 head on 3 December last year.

Three days later, Mazzone brought the first motion, which she later withdrew, and replaced it with a more detailed one. This was also accepted by Modise.

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