The number of reports successfully reviewed cannot be used to determine her competence or incompetence, Public Protector Busisiwe Mkhwebane has argued in an affidavit which is part of her bid to have parliament’s removal proceedings against her stayed.
Mkhwebane also wants objectionable parts of the DA’s answering affidavit struck for being “scandalous, vexatious, hearsay, argumentative, and, where applicable, irrelevant in parts”.
What she wants to be struck from the DA’s affidavit is a statement by Sphelo Samuel, the head of the Office of the Public Protector in the Free State, in which he accuses Mkhwebane of mismanagement and other misconduct, including her handling of the politically sensitive Vrede dairy farm investigation.
In papers, Mkhwebane describes Samuel as a “disgraced and disgruntled” employee facing disciplinary steps after he was found guilty of assault.
“I deny I had not investigated a third of the complaints in the Vrede dairy matter. I investigated those complaints that have come to my office. However, due to limited resources, I postponed the other part of the complaint for future investigations which are currently underway,” read Mkhwebane’s affidavit.
The affidavit is the latest salvo in a court battle which began in February when Mkhwebane filed an urgent bid in the Western Cape High Court seeking an interdict to halt the parliamentary process underway to remove her from office.
The interdict is only the first part of the application.
She is also asking the court to set aside the rules for the removal of Chapter 9 Institution heads, such as the public protector, which the National Assembly adopted in December, and rule them unconstitutional and invalid.
This followed National Assembly Speaker Thandi Modise’s approval of the DA’s substantive motion to institute removal proceedings against Mkhwebane, which came three days after the National Assembly adopted the rules.
DA chief whip Natasha Mazzone withdrew this motion and submitted another, with 7,000 pages of what the DA deems as further evidence that Mkhwebane should be removed.
After Mkhwebane brought her application, parliament’s spokesperson, Moloto Mothapo, said in a statement Modise “will oppose the application in defence of Parliament’s powers as provided for in the Constitution which states that these institutions are accountable to the National Assembly”.
In her answering affidavit, Modise asked the court to throw out Mkhwebane’s application as there was no basis to stop the process and the National Assembly was within its rights to pursue the case.
As in her founding affidavit, Mkhwebane is scathing of Modise in her responding one.
Mkhwebane decried Modise and the DA for filing their answering affidavits late, saying she found it “even more disturbing” that “the speaker has most ominously adopted the attitude and posture of an interested adversary in this matter”.
“That is unbefitting of her constitutional role. The main adversary is supposed to be the DA.”
Mkhwebane stated all she “really desire is legal certainty and judicial assurance” that the rules for her removal were constitutionally valid.
“Ordinarily, the overall conduct of the speaker in this matter would be deserving not only of a punitive cost order, but also personal costs,” read Mkhwebane’s affidavit.
She said the rules were not aimed at strengthening the Constitution or aimed at removing the other heads of Chapter 9 institutions.
“…but they were aimed at the removal of Mkhwebane,” added Mkhwebane.
She likened it to the apartheid-era Sobukwe Clause that allowed the apartheid authorities to arbitrarily extend PAC leader Robert Sobukwe’s imprisonment.
By agreement of the parties, 26 and 27 March has provisionally been set down for the hearing in the Western Cape High Court, subject to confirmation by Judge President John Hlophe.
While parliament has suspended its activities due to the Covid-19 pandemic, Modise was still busy processing the motion, Mothapo confirmed on Friday.
The next step of the removal proceedings involves Modise appointing an independent three-person panel to adjudicate whether there is a prima facie case for Mkhwebane’s removal.
This after political parties submitted candidates for the panel.