Public Protector Busisiwe Mkhwebane is smelling a rare court victory as she insists that the Western Cape high court should still adjudicate on her interdict application against National Assembly Speaker Thandi Modise.
The two parties are among the litigants in a dispute over the Parliamentary rules concerning the process to investigate Mkhwebane’s fitness to hold office.
Last Month Modise said she was satisfied that a new motion by the DA for proceedings to be initiated to remove Mkhwebane from office complied with the rules of the house.
The Public Protector has asked the court to declare the rules “unlawful and unconstitutional”.
After Mkhwebane applied to the courts to interdict Modise, the DA, who filed the initial complaint to investigate Mkhwebane on December 6 2019, withdrew its original motion and filed a new one on February 21 2020.
Mkhwebane said in her latest court papers that both Modise and the DA were trying to “avoid the adjudication of this application by relying on the fact that the DA’s motion of December 6 2019 was withdrawn and immediately replaced with a new motion”.
“The theory that there is a completely new process is therefore artificial and contrived. It elevates form over substance,” she said.
She said both the respondents — who also filed their papers late — failed to appreciate the fact that the relief she sought was that Modise be interdicted from implementing the impugned rules, which are a subject of litigation for being unlawful and unconstitutional in the second part of the interdict application.
Thandi Modise. Picture: Deon Raath
“The Speaker fails to understand that the relief sought in Part A of the application is not mainly about the specific motion of December 6 2019 but the implementation of the impugned rules in any manner whatsoever pending the final determination of Part B of the relief sought.
She said that in the context of the relief sought in Part A, “the words ‘any further steps’ included the act of replacing the December motion with the February motion and reinviting the political parties to nominate members of the ad hoc committee, et cetera”.
“Whether (the DA) withdraws the motion and replaces it with another one, as long as the process of ‘replacement’ is still informed by the impugned rules, such process should not go ahead pending the determination of the relief sought in part B of my application.”
Mkhwebane also took umbrage with the inclusion of “a detailed analysis of the adverse utterances made by the court against her in the recent Bosasa judgment” in Modise’s supplementary answering affidavit.
She said it was vexatious and irrelevant to the Parliamentary rules matter and was only “included to harass and annoy me”.
“To the knowledge of the Speaker, and while the mere fact that the [Bosasa] judgment was handed down is relevant to the narrow issue of the president’s conflict…the actual utterances of the court are irrelevant to the present application”.
On March 10 the Pretoria High Court set aside Mkhwebane’s report into President Cyril Ramaphosa, in which it was found that he deliberately misled Parliament about a donation to his ANC presidential campaign from controversial company Bosasa.
Mkhwebane said in her papers that the high court judge’s comments were also irrelevant to the DA’s complaint against her as they occurred after February 21 2020, the date on which the DA filed its motion to probe Mkhwebane’s fitness to hold office.
“It is impermissible for the complainant to clutch at straws by forever padding up the complaint with material which comes into existence well after the submission of its complaint. Such allegations must accordingly also be struck out,” she said.
Mkhwebane said Modise failed to deliver her answering affidavit at a time when she had not even decided whether or not the new motion was in order and could therefore constitute a valid “replacement” of the earlier motion.
“All this proves that the entire withdrawal or replacement process was a contrived sham,” she said.
She said that at its core, the nature of her interdict application was to afford all parties, including the Modise herself, an opportunity to have the constitutionality and lawfulness of the rules determined by a court of law and the advice from Modise and the DA that she should resultantly file a supplementary affidavit was “equally inappropriate and potentially wasteful”.
More so, she said, Modise had refused to “accede to the eminently reasonable request from me and some of the political parties that the process be suspended until the court has pronounced whether or not the impugned rules are constitutionally valid”.
Anyone looking at the size and content of the answering affidavit would be forgiven for thinking that the Speaker is not a dispassionate and neutral role-player but a pugilist facing a ‘challenger’ who must be defeated
Busisiwe Mkhwebane on Thandi Modise
“A neutral observer may ask what the rush is for, as it may well turn out to be a rush in the wrong direction,” said Mkhwebane. She said it was “even more disturbing is that the Speaker has most ominously adopted the attitude and posture of an interested adversary in this litigation”.
“That is unbefitting of her constitutional role. The main adversary is supposed to be the DA. However, anyone looking at the size and content of the answering affidavit would be forgiven for thinking that the Speaker is not a dispassionate and neutral role-player but a pugilist facing a ‘challenger’ who must be defeated”.
Mkhwebane said two political parties represented in the National Assembly supported her application while 11 others, including the majority party, the ANC, elected to abide the decision of the court.
“These parties represent the vast majority of South Africans. Out of the constituency which elected the Speaker, only one political party, with 84 out of 400 seats and for understandable historical reasons, has adopted a similar, albeit milder, attitude as the Speaker. This body language on the part of the Speaker is concerning,” she said.
She said the court should ordinarily consider “not only a punitive cost order but a personal cost order” against Modise for her “overall conduct” in the matter.