Cape Town - Public Protector Busisiwe Mkhwebane has taken the fight against her suspension and the parliamentary process to remove her from office to the Western Cape High Court.
This comes after her failed bid to interdict her suspension and the parliamentary process to remove her from office on grounds of incompetence and misconduct.
In her Part B application, Mkhwebane wants the court to find the conduct of National Assembly Speaker Nosiviwe Mapisa-Nqakula to write a letter to President Cyril Ramaphosa on resumption of removal proceedings set aside.
She also wants the court to find the conduct of Ramaphosa to suspend her to be invalid as well as the conduct of the Section 194 Committee to proceed with its work while she was appealing a Constitutional Court judgment, among others.
Mkhwebane’s legal counsel advocate Dali Mpofu said once the court declared conduct inconsistent with the Constitution, such conduct was invalid.
Mpofu said they were in court because of the letter Mapisa-Nqakula wrote to Ramaphosa notifying him of the start of the work of the Section 194 Committee in March.
He said the conduct of Mapisa-Nqakula was inconsistent with the Constitution and should be declared unconstitutional.
“That letter was misstating the law. It was not authorised by anything,” he said.
Mpofu also said a public functionary can’t act outside his or her powers.
“Where does the Speaker derive power to write that letter? Nowhere,” Mpofu said.
When one of the judges suggested it was in the spirit of co-operative governance, Mkhwebane’s legal counsel disagreed.
“Once the committee finishes its work, then the Speaker writes to the president ...”
When Judge Gcinikhaya Nuku asked if it was not incumbent on her so that Ramaphosa could exercise his power, Mpofu said it should have been put in the parliamentary rules.
“You don’t do something because it is a good idea. You do what you are empowered to do otherwise you have to explain. It was intended to trigger the suspension of my client and it did that by the way.”
Mpofu also said if the removal proceedings have not started, it meant that nobody has the power to suspend.
He also said the parliamentary proceedings by the Section 194 Committee were actually not removal proceedings.
“This is a very important point. We are saying those proceedings are not removal proceedings.”
Mpofu insisted that the Section 194 Committee’s function was to determine the veracity of the charges levelled against Mkhwebane.
“If those proceedings are about determining veracity of the charges, then how can you call them proceedings to remove.”
Mpofu also made references to sections of the constitution the Section 194 Committee currently existing was not envisaged in the supreme law of the country.
“It is that committee that is to make recommendations, otherwise it would mean you end up nowhere,” Nuku said.
But Mpofu disagreed, saying that was not in the mind of the people who crafted the constitution in the 1990s.
He said the head of Chapter 99 Institution may be removed only on a finding by a committee of the National Assembly and that the president could suspend after the start of proceedings of a committee of the National Assembly for removal of that person.
“The framers of the constitution don’t just put words just for fun,” he said.
“There can be no doubt that there is another committee envisaged there,” Mpofu said.
He said the interpretation of the constitution was bound by the words.
“If the constitution says a committee for removal, you can’t turn a committee that is not for removal into a committee of removal just because it will be a nice thing for it to be like that,” Mpofu said.
He charged that Ramaphosa triggered Mkhwebane’s suspension a month before the actual removal process started.
Cape Times