The legal war between Public Protector Busisiwe Mkhwebane and National Assembly Speaker Thandi Modise has escalated, with both now seeking personal costs orders against each other in a heated battle over Mkhwebane’s possible impeachment, notes legal writer Karyn Maughan in a Business Day report.

In papers filed at the Western Cape High Court this week, Mkhwebane compared the newly-enacted parliamentary rules that will govern any potential inquiry into her fitness to hold office to the ‘Sobukwe clause’ – the apartheid-era legislation used to arbitrarily extend the imprisonment of PAC leader Robert Sobukwe.

The Public Protector contends that these rules are aimed solely ‘at the removal of Mkhwebane’.

Modise is having none of Mkhwebane’s conspiracy claims and wants her to face a personal costs order for claiming that the Speaker had an ‘ulterior purpose’ for approving a DA motion that could result in her impeachment.

The DA contends that Mkhwebane’s incompetence has been clearly demonstrated by the court rulings given against her in the Reserve Bank and Estina Dairy Project scam cases in which the Public Protector was ordered to personally pay legal costs for unreasonable and ‘bad faith’ litigation.

Mkhwebane is resolute that these rulings are simply the ‘opinions’ of the judges who gave them.

Mkhwebane is also questioning the Speaker for refusing to suspend any potential inquiry into her fitness for office until her major legal challenge to the inquiry process is concluded.

‘A neutral observer may ask what the rush is for, as it may well turn out to be a rush in the wrong direction,’ Mkhwebane states in court papers, later adding that Modise had adopted the ‘unbefitting’ stance of an ‘interested adversary’ in the case.

Western Cape Judge President John Hlophe, who is embroiled in a much-publicised battle with his deputy Patricia Goliath, has agreed that Mkhwebane’s urgent bid to interdict any potential parliamentary inquiry into her fitness to hold office will be heard on 26 and 27 March.

He has also agreed that the case should be decided by three judges.

Business Day suggests he arguably faces a potential minefield in choosing the judges who will decide on the politically explosive dispute, as many of his court’s 34 permanent judges have refused to share a Bench with their colleague, Judge Mushtak Parker, who, according to them, has given contradictory accounts about whether he was, or was not, assaulted by Hlophe.

The 12 include some of the court’s most senior judges, and their exclusion from the Public Protector case may raise eyebrows in a judicial environment now very clearly defined by suspicion and bad blood.

With the allegations against Hlophe of politically-motivated interference in the appointment of judges still unresolved, the Judge President will know his decision on who will hear the Mkhwebane interdict application will be keenly watched and the subject of speculation and debate.

Full Business Day report (subscription needed)