Citing wide-ranging constitutional irregularities and violations, Public Protector Busisiwe Mkhwebane has filed an urgent bid in the Western Cape High Court, seeking an interdict to halt the parliamentary process under way to remove her from office.
The interdict is only the initial step of the application. Mkhwebane is also asking the court to set aside the rules adopted by Parliament last year, which deal with the removal of Chapter 9 Institution heads, such as the Public Protector, and rule them unconstitutional and invalid.
She is also asking the court for an order forcing National Assembly Speaker Thandi Modise to provide her with the reasons for her decision to approve the motion by acting Democratic Alliance (DA) chief whip Natasha Mazzone to remove her from office.
"I merely request that the process for my removal and/or possible suspension be delayed until the finalisation of the main application," Mkhwebane said in an affidavit filed on Tuesday.
"Unless the interim interdict is granted, I will suffer the prejudice of being subjected to the process conducted in terms of the unlawful rules and may also be suspended by the president in terms of the same rules, which I firmly belies are unlawful and unconstitutional.
"At a bare minimum, I will be subjected to a reputation-impairing dark cloud of suspicion, with a detrimental impact on me and other interested parties," Mkhwebane's affidavit reads.
She cites the heads of other Chapter 9 Institutions, such as the South African Human Rights Commission and the Independent Electoral Commission as respondents, including the Speaker of Parliament and the DA.
Modise approved a motion by the DA to initiate proceedings to remove Mkhwebane in December 2019. The parties have until Friday to put forward the names of candidates who will serve on an interim committee.
This committee will examine the evidence and reach a decision on whether to recommend a full-scale inquiry to a sitting committee of Parliament.
Mkhwebane, however, fears that President Cyril Ramaphosa could, for some "perverse" reason, suspend her pending the outcome of that process.
'I have done an excellent job'
Mkhwebane has come under considerable criticism as a result of adverse findings made against her by the courts, particularly in her Vrede Dairy Farm investigation and her investigation of government's alleged failure to implement the CIEX report, the so-called South African Reserve Bank (SARB) case.
But she says the accusation of incompetence by the DA is "demonstrably false, baseless and malicious".
She cites statistics including that, since her appointment, her office has finalised 40 240 complaints out of 55 429 lodged. In addition, only three out of 135 investigation reports have been successfully reviewed (four were successfully defended).
She adds that 62 reports were currently before the courts for review, while 66 remain unchallenged.
"If I were to be judged according to these statistics, my performance is clearly above board and excellent. This is coupled with the fact that for successive years, I have received clean audits from the Auditor-General," Mkhwebane's affidavit reads.
She adds: "How the National Assembly and the Speaker should discharge their constitutional responsibilities and duties, and whether in a particular case they did so properly, lies at the heart of this matter. So too does the constitutional values of democracy, fairness, ubuntu and the rule of law but, above all, accountability."
Mkhwebane states that a cornerstone of the principle of accountability is to make it very difficult for politicians to control and remove "at a whim" watchdogs of the public.
"It is the very first time ever in our young democracy that a serious attempt is being made to remove and dethrone the head of a watchdog institution by impeachment."
Busisiwe Mkhwebane's application to the Western Cape High Court2.18 MB