Public Protector Busisiwe Mkhwebane. (City Press)
A court bid to declare Public Protector advocate Busisiwe Mkhwebane unfit to hold office is moot and should be dismissed as a parliamentary process is already afoot, her legal team has argued.
Anti-corruption pressure group Accountability Now approached the Gauteng High Court in Pretoria on Tuesday seeking a declaratory order that Mkhwebane is no longer fit and proper to hold office.
Advocate Pat Ellis SC for Accountability Now argued previous court findings against Mkhwebane, namely the SA Reserve Bank and Estina Dairy judgments, painted a grim picture of the Public Protector’s conduct.
Ellis asked the court to make a factual finding on the current Public Protector’s conduct based on these court judgments, but explicitly argued Accountability Now was not seeking an order to remove her from office.
However, Judge Phillip Coppin questioned the purpose of the declaratory order, saying if such an order was granted, Mkhwebane would have to be removed from office as a result.
Judge Coppin argued, in his opinion, the declaratory order would be binding on Parliament and it would be forced to comply with it.
Ellis argued Parliament would not be bound by the decision but rather was bound to consider the court’s findings.
He added Accountability Now was looking for a legal decision, whereas any action taken by Parliament would be political in nature.
Advocate Muzi Sikhakhane SC for Mkhwebane agreed with Judge Coppin’s views, arguing the consequential relief sought by the applicants sat with Parliament.
This was bolstered by the fact Parliament had announced in January it would start the process regarding the prima facie assessment of the motion for Mkhwebane’s removal as Public Protector.
“There is no reason to come to this court for an opinion and summary of the other judgments,” Sikhakhane argued.
He said because the process was already before Parliament, the court was not the right platform to deal with questions into the Mkhwebane’s fitness to hold office.
Sikhakhane accused Accountability Now of abusing the court’s powers to try and expedite the removal of Mkhwebane as it envisaged the process of removing her would take a long time.
“It’s a get-there-quick scheme. This application is not only misconceived, is also an egregious abuse of this court and its processes.”
Sikhakhane added if the court granted the declaratory order, Parliament would have no role to play in its own processes in the motion to remove Mkhwebane from office.
Advocate Tembeka Ngcukaitobi SC for the EFF, who was also a party in the proceedings, told the court imposing such a declaration would be a grave infringement on the doctrine of the separation of powers.
He said the Constitution empowered Parliament to deal with this case and granting the declaratory order would be the silver bullet to avoid establishing the guilt or innocence of the Public Protector during the parliamentary process.
Ngcukaitobi added Parliament should be allowed to make a primary decision on Mkhwebane’s fitness to hold office and if that decision had been butchered, then the court would be engaged in the lawfulness of the decision.
Judgment has been reserved.