Judgment has been reserved in Public Protector’s bid to stop a Parliamentary probe into her fitness to hold office. Advocate Busisiwe Mkhwebane approached the High Court in Cape Town after the National Assembly endorsed a motion by the DA Chief Whip Natasha Mazzone for a panel of independent experts to be appointed to assess whether or not Mkhwebane has a case to answer.
Mkhwebane wants the High Court to halt the process pending a determination on the constitutionality of the National Assembly rules for removing the head of a Chapter 9 institution from office.
Advocate Dali Mpofu, acting on behalf of the Public Protector, took five hours to try and convince the full bench why Mkhwebane’s application for an interim interdict should succeed. This after the virtual sitting of the court was interrupted twice by technical glitches, forcing the matter to be postponed to give Mkhwebane’s legal team a chance to make their concluding submissions.
In terms of the National Assembly rules, an independent panel – possibly headed by a judge – must be appointed after a substantive motion has been received. But Mpofu argued that appointing a judge would be trenching the separation of powers between the legislature and the judiciary.
“Our issue really with that is the panel breaches separation of powers,” said Mpofu.
Mpofu also argued that the Speaker, Thandi Modise, does not have powers to appoint a judge to serve on any panel.
“If this is ultimately a political decision, judges should be kept far away, rules fatally flawed.”
Responding to the DA’s argument for the court to award a punitive cost order against Mkhwebane, Mpofu asked the court not to grant the party its wish, saying the DA has hounded Mkhwebane from day one.
“They insulted her, called her a spy from the day she was appointed. So to ask for costs, because they have an axe to grind, is thick coming from them.”
In the video below, Parliament Speaker and Mkhwebane headed for a legal showdown: