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Attempt to declare Public Protector unfit via judiciary violates separation of powers, court hears

By Greg Nicolson• 12 February 2020

No one in court on Tuesday questioned the scathing judgments against Public Protector Busisiwe Mkhwebane. What was in question was whether a court could rule her unfit for office or whether that’s the exclusive role of Parliament. 

Advocate Pat Ellis found himself in a difficult position at the North Gauteng High Court on Tuesday. Ellis, representing public interest litigation NGO Accountability Now, had outlined scathing judgments against Public Protector Busisiwe Mkhwebane and called for the court to declare her unfit for office.

“Isn’t this order you’re seeking just the type of interference that goes a bit too far?” asked Judge Phillip Coppin.

Ellis struggled to answer the question on what the case meant for the separation of powers principle and how such a declaratory order would influence Parliament, which has begun a process to potentially remove the public protector.

Accountability Now first approached the courts in 2019, but the case was heard only on Tuesday after the EFF joined the proceedings. It’s not the first attempt to have Mkhwebane declared unfit for office.

The Reserve Bank in its review application of Mkhwebane’s report on the ABSA-Bankorp lifeboat asked the court to issue an order that she had abused her office. It wasn’t granted on procedural grounds.

While challenging her dismissal, the public protector’s former COO Basani Baloyi asked the court to find Mkhwebane had violated her constitutional obligations. The High Court said the matter should be heard in the Labour Court.

“It is clear that the public protector does not care about her constitutional obligations. Instead, she uses them for ulterior purposes and not in the interest of those whom the Constitution enjoins her to benefit from them,” said Ellis on Tuesday.

In its court papers, Accountability Now said it was untenable for Mkhwebane to remain in her role while there have been damning judgments against her and it’s unclear how long Parliament’s removal process will take.

Ellis spoke of Mkhwebane’s misconduct, incompetence and incapacity (the keywords that would justify her removal) to perform her duties and referred to her Reserve Bank and Estina reports which were overturned on review.

In her report on the Reserve Bank, Mkhwebane failed to report that she met the presidency and State Security Agency, while she also called for the institution to be nationalised. The North Gauteng High Court said she could be “reasonably suspected of bias” and the Constitutional Court said her actions stood in “stark contrast” to the expectations of her office.

Mkhwebane’s report on the Estina dairy farm scandal, which saw hundreds of millions of rand meant for poor black farmers diverted to companies linked to the Gupta family, was criticised in court for failing to properly consider the designated beneficiaries and excluding the role of Free State officials such as Ace Magashule and Mosebenzi Zwane.

The public protector was hit with personal cost orders in both cases.

“This clearly shows that the [public protector] would not shy away from omitting to execute her duties in the interest of the very people that ought to benefit from her office. She left those beneficiaries high and dry,” said Ellis.

“It is clear that no court after these judgments can place any reliance on anything that the public protector says under oath,” he said.

Judge Coppin didn’t appear convinced. He asked what Accountability Now wanted from the court. Parliament would be obliged to consider a declaratory order ruling Mkhwebane unfit for office and might be obliged to follow it, he suggested, raising questions about the court infringing on the powers of the legislature.

Advocate Muzi Sikhakhane, representing Mkhwebane, called the Accountability Now application “entirely misconceived”. He said it was aimed at forcing Parliament to remove Mkhwebane, which amounted to “the usurpation of the role of Parliament”.

“There is no way of getting out of that,” he said, calling the case a “get-there-quick scheme”.

Sikhakhane said the application was an abuse of processes “because this court is being asked to do the bidding for the applicant who second-guesses Parliament”.

The EFF has vowed to defend Mkhwebane from efforts to remove her. Representing the party on Tuesday, advocate Tembeka Ngcukaitobi said the Accountability Now application had no purpose and should be dismissed.

He said there are already clear guidelines to follow in determining the suitability of attorneys and advocates and in the Nomgcobo Jiba case, the courts recently clarified the definition of what fitness for office means for a public representative.

He said Accountability Now wanted to undermine the Parliamentary process to remove Mkhwebane by asking the court for a “silver bullet”.

“There could not be a graver infringement of the separation of powers doctrine,” Ngcukaitobi said.

He said it was legislators’ role to create laws and the courts’ role to review their decisions.

“We have now inverted the entire process. We have put the court upfront and putting the court upfront is dangerous because it makes the court the subject of parliamentary decisions,” he said, adding that the judiciary could be criticised for playing politics if it granted the order against Mkhwebane.

Apart from the scathing judgments against her, Mkhwebane has also been seen as a thorn in the side of President Cyril Ramaphosa’s administration. Ramaphosa has taken her report on his CR17 campaign finances to court seeking to overturn its findings and recommendations. Public Enterprises Minister Pravin Gordhan has also challenged her report on his role as SARS commissioner.

National Assembly Speaker Thandi Modise has given political parties until 12 February to nominate candidates for an independent three-person panel that will determine whether the DA’s motion to remove Mkhwebane has merit. The panel will have 30 days to determine whether Parliament should hold an inquiry on whether to remove the public protector.

Mkhwebane has filed an urgent application in the Western Cape High Court seeking to interdict the parliamentary process. Mkhwebane has said the rules adopted by the National Assembly to facilitate the removal of a public protector are “unconstitutional and unlawful”. She has also expressed concern that those who will vote on her removal include individuals she is investigating.

Judgment was reserved in the North Gauteng High Court on Tuesday. DM

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