South Africa


Judge unimpressed by claim of DA ‘vendetta’ against public protector

Judge unimpressed by claim of DA ‘vendetta’ against public protector
Public protector Busisiwe Mkhwebane, left and National Assembly Speaker Thandi Modise. (Photos: Thapelo Morebudi / The Sunday Times | Leila Dougan)

The Sobukwe Clause and vendettas. Public Protector Busisiwe Mkhwebane’s advocate Dali Mpofu got a judicial tongue-lashing for comparing democratic South Africa’s Parliament with the apartheid government.

On 3 May 1963, the apartheid Parliament passed the General Law Amendment Act to annually extend Pan Africanist Congress (PAC) leader Robert Sobukwe’s solitary confinement on Robben Island until May 1969, when he was banished to Galeshewe, Kimberley. It’s known as the Sobukwe Clause because it was only ever used against the founding PAC leader.

But when Public Protector Busisiwe Mkhwebane’s advocate, Dali Mpofu, on Wednesday argued the parliamentary rules on removing office-bearers of the constitutionally established Chapter 9 institutions to support democracy were like the Sobukwe Clause – Mpofu claimed they were aimed specifically at the public protector – he was stopped in his tracks.

“It’s bizarre that in this constitutional democracy you would argue Parliament would institute a Sobukwe Clause,” said Judge Vincent Saldanha.

“The analogy you make is that Parliament acted like the apartheid government… How can you make the analogy that this Parliament would make rules like the apartheid government parliament did?”

Mpofu eventually argued his comments were related to the DA.

“I’m coming to Parliament later… I am talking about the DA,” said the advocate, adding no one would be in court now if it were not for the DA. “The DA had a vendetta to draft rules that are akin to the Sobukwe Clause.”

However, that word – vendetta – remained part of Mpofu’s legal argument despite an earlier question from Saldanha what he meant by it because, “I understand vendetta in terms of strange criminal behaviour”.

Mpofu argued it was more about bias – and bad faith for which he fingered both the DA, some of its MPs, but also National Assembly Speaker Thandi Modise.

The judicial reproof over the Sobukwe Clause was not the first in a long day of robust interaction between judge and advocate. The political overtones were apparent in the public protector’s arguments in the bid to interdict Parliament.

The two-day virtual Western Cape High Court hearing is yet another step in an almost three-year process that started in September 2017 when the then-DA chief whip, John Steenhuisen, wrote to the then-speaker, Baleka Mbete, to start proceedings for Mkhwebane’s removal from office.

In mid-August 2017, the Pretoria High Court had given a damning finding against Mkhwebane in the proceedings over the Absa apartheid-era Bankorp bailout report – and set aside remedial action that sought to change the South African Reserve Bank mandate by ordering Parliament’s justice committee chairperson to move a constitutional amendment.

Reserve Bank and Parliament trump Public Protector as court sets aside remedial action to change Constitution

As ANC MPs fractured on factional lines, the parliamentary justice committee repeatedly stalled throughout 2018 on taking action, one way or the other.

The May 2019 elections meant the outgoing MPs kicked for touch. After the elections, the DA renewed its request for Mkhwebane’s removal from office, citing several further critical court rulings.

Mkhwebane no-show: Public protector protects herself from inquiry, citing ‘unforeseen family emergency’

In July 2019 Mkhwebane wrote to Modise to say she had “a sacred duty” to assist the speaker to point out Parliament had no rules to remove the public protector from office.

On 22 August 2019, the National Assembly programming committee was briefed about the lack of rules. Modise wrote to the justice committee saying it could decide what to do, or ask the rules committee to write the rules. The justice committee decided the rules committee should draft the rules.

Removing public protector — a long and slow road, never before travelled

That was done. And in December 2019, the National Assembly, in one of those rare moments of unanimity, agreed to the rules on removing heads and members of Chapter 9 institutions which include the public protector, the auditor-general, the Electoral Commission of South Africa (IEC) and the Independent Communications Authority of South Africa (Icasa).

Effectively, the process is twofold: if a complaint is received – it can only be on grounds of misconduct, incapacity or incompetence – the speaker will evaluate it and, if found to be of merit, will constitute a panel of experts to assess the complaint.

While no formal hearings are scheduled at this stage, the Chapter 9 institution office-bearer is able to give his/her comment and responses to the panel, which must complete its assessment within 30 days.

If the panel decides there is a case to answer, then Parliament, through a motion in the House, constitutes a Section 194 inquiry, named after the constitutional provision for the removal of office-bearers of Chapter 9 institutions.

That Section 194 inquiry holds public hearings, including testimony from the affected office-bearer, deliberates and decides on whether the office-bearer must be removed or not. If yes, that recommendation must be adopted by the House. In the case of a public protector or auditor-general, it needs approval by at least two-thirds of the House.

If that sounds drawn out, it is. But removal from office of an office-bearer of a Chapter 9 institution to support is a gravely serious matter.

With the new rule in place, DA Chief Whip Natasha Mazzone renewed the complaint for Mkhwebane’s removal and included further court rulings critical of the public protector’s conduct and findings.

Mkhwebane is on public record stating that her reports and remedial findings are akin to judgments, and so setting them aside is no indication of shortcomings. No one imputes judicial incompetence when a ruling is overturned on appeal.

At the end of January 2020, Modise decided there was sufficient cause to appoint the independent panel of experts as the first part of a removal inquiry. Political parties were given until 7 February 2020 to submit candidates’ names.

Mkhwebane objected. In correspondence to Modise, she described the rules as “unconstitutional” and “unfair”, saying she had not had an opportunity to give her side. Instead, she called for an “amicable solution”, saying if that was not possible court action would follow.

Public protector’s parallel universe and spin — a reality check by fact and timeline

It’s always been a two-pronged court application: first, the interdict against the proceedings to inquire into the possible removal of Mkhwebane, then a court review of the actual parliamentary rule, Removal of Officer Bearers in Institutions Supporting Constitutional Democracy.

The interdict hearing was stalled by the Covid-19 hard lockdown from late March – until Wednesday, when Mkhwebane’s advocate reiterated the unconstitutionality and unfairness of the rules, how the public protector had not been able to give her side, and bias from not only the DA, but also Modise.

“The attitude of the speaker leaves a lot to be desired,” argued Mpofu. “A reasonable speaker would have welcomed the opportunities for the rules to be tested in court… and proceed in comfort that these rules have been sanctioned by the court.”

The virtual hearing continues on Thursday. DM


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