Public Protector’s removal a DA ‘vendetta’ – Dali Mpofu

Public Protector Busisiwe Mkhwebane has likened herself to struggle hero Robert Sobukwe – who was detained for years on end under laws the apartheid regime designed specifically for him.

Advocate Dali Mpofu SC, acting on behalf of Mkhwebane, on Wednesday compared the rules Parliament passed earlier this year setting out the process to remove the head of a Chapter 9 institution from office, to what has over time become known as ‘the Sobukwe Clause’.

This as Mkhwebane’s constitutional challenge to the rules – launched in February but then delayed as a result of the Covid-19 pandemic – finally kicked off in the Western Cape High Court.

Mkhwebane approached the court after National Assembly Speaker Thandi Modise approved a DA motion to institute removal proceedings against her. In the first part of her challenge, she wants Parliament interdicted from using the rules to remove her from office pending the finalisation of the second part, in which she wants them declared unconstitutional and invalid.

The apartheid government enacted the Sobukwe Clause in 1963 with the express purpose of empowering itself to extend Sobukwe’s detention indefinitely, with his being the only case in which the clause was ever invoked.

Mpofu said the rules in question had in the same way been designed specifically for Mkhwebane.

Even when Judge Vincent Saldanha – one of the three judges hearing the case – questioned his choice of words, Mpofu stood firm.

“It’s just bizarre, in a constitutional democracy, that you would make the submission that Parliament has acted like the apartheid government,” Saldanha said.

“The Sobukwe clause was passed by an apartheid government not a democratic government. How could you accuse this Parliament of passing a Sobukwe clause?”

Mpofu responded that it was not Parliament, but the Democratic Alliance which had drafted the rules.

“All I’m saying is the DA had an agenda,” he said.

In his heads of arguments, Mpofu charged that the rules were “clearly targeted at the Public Protector”.

This “despite the euphemistic references to ‘the removal of a Chapter 9 head’,” he went on.

That Mkhwebane had been denied full legal representation in terms of the rules with Modise pointing out that Mkhwebane, herself, was a qualified advocate – was evidence of this, Mpofu said.

“The speaker has fallen into the trap of indirectly confirming the Public Protector’s strongly held view, supported by objective evidence, that these rules, while sold on the contrived basis that they constitute a law of general application in respect of all heads of Chapter 9 institutions, were in actual fact specifically designed for and targeted at an individual called Busisiwe Mkhwebane,” he said,

“Otherwise, the speaker could never invoke the qualifications of Ms Mkhwebane to justify a total and inflexible ban on full legal representation if the rules are indeed intended to apply equally and generally to all the other heads of Chapter 9 institutions, who are in fact not and need not be necessarily legally trained persons.”

Mpofu also made veiled references to what he later described in court as the DA’s “vendetta” against Mkhwebane.

“Within less than a year of her assumption of office and from then to date, the DA has made at least five separate attempts to have the Public Protector removed from office,” he said.

“We also pause to mention that since the time of her interviews, the DA had pedalled false information that the Public Protector was a spy… When that failed, the accusation was that she was incompetent…

“To cut a long story short, these attempts culminated in the process of drafting the current rules.”

The case is set to continue on Thursday.

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