Public Protector Busisiwe Mkhwebane is fighting tooth and nail against her removal from office and has hit back at the Western Cape High Court’s dismissal of her legal bid to halt the process, with a list of 20 “cardinal errors” her legal team says it made.
Mkhwebane approached the court with a two-part application this year after National Assembly Speaker Thandi Modise approved a Democratic Alliance motion to institute removal proceedings against her.
Last month, the court dismissed part A of the application, in which Mkhwebane wanted the process halted pending the finalisation of part B, in which she wants the new rules for unseating heads of chapter nine institutions declared unconstitutional and invalid.
Mkhwebane’s legal team returned to court on Tuesday to argue for leave to appeal last month’s ruling.
Mkhwebane’s advocate, Dali Mpofu, picked it apart.
He detailed 20 “cardinal errors” he said the court made, ranging from “mischaracterisation” of the application to “internal inconsistencies and contradictions” in its ruling to its “rejection of undisputed objective facts”.
But “one of the most egregious” of these, he said, was the court’s handling of an issue Mkhwebane had raised about the limitations on legal representation in the new rules for the removal of office bearers of Chapter Nine institutions.
The court found it unnecessary to express “any view” on the issue, pointing to Mkhwebane’s pending review of the new rules.
“The court, with respect, simply abdicated its responsibility,” Mpofu charged. “Clearly, another court, any other court, would find it necessary to express a view.”
Mpofu was adamant it was in the interests of justice that the issues be ventilated before a higher court and highlighted what was at stake for Mkhwebane.
“The speaker has issued a public pronouncement she now intends to forge ahead with the appointment of the independent panel and the rest of the removal process.
“If the process continues much further before part B is determined, the public protector faces the prospect of suspension, while the unconstitutionality of the rules might well be confirmed.”
Judgment was reserved.