Mpofu warns of ‘judicial entanglement in matters of political controversy’
Judgment has been reserved in the application by Public Protector Busisiwe Mkhwebane for an interdict to stay Parliament’s process to remove her from office.
The Public Protector’s senior counsel, Advocate Dali Mpofu, made final arguments before the Western Cape High Court on Monday.
Earlier this year, National Assembly Speaker Thandi Modise granted the Democratic Alliance (DA) its request to start a process to remove Mkhwebane from office.
The party submitted a 7000-page document as evidence alleging Mkhwebane is not fit to hold office.
Mkhwebane's application has two parts.
The first part is to ask the court to interdict Parliament from continuing with the process to remove her and the second part is to challenge that process itself.
Mpofu relied on the principles of fairness, rationality, retrospectivity, and the separation of powers to argue the matter, questioning the motives of the DA.
“In this case the primary relief that is sought is declaration of unconstitutionality. One of the natural consequences of a declaration of unconstitutionality is obviously to set aside as invalid that which has been declared as unconstitutional.”
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Mpofu again raised previous concerns that the DA’s motion is driven by a vendetta against Mkhwebane.
“If you have a set of facts here where everyone agrees that it is unlikely that a removal is going to eventuate, for whatever purpose, then whet we are saying is that is something that the court must weigh as to the motive for this.
“Is the court being just going to be used for expediency, vengeance, fulfilling the basic animal instincts in us to just punish those we may not like or is the court going to be looking at the prospects, in other words a different species of what’s likely to happen,” he asked.
Mpofu warned against using the court to settle political scores.
“This is the biggest irony of this case by the way, these respondents speak with both sides of their mouth because when we talk about Section 34, they say ‘no Section 34 is not applicable because these are political decisions they are not necessarily legal decisions’ and then they forget that submission. Then they come here now to separation of powers we say you can’t involve a judge in what is essentially a political decision, they say ‘no it’s not a political decision, it’s a decision of law that’s why you need a judge’.”
He told the court that the National Assembly is treading a fine line.
Listen to Adv Mpofu below:
