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Beyond hopeless: Mkhwebane employing Stalingrad tactics to avoid being impeached, says DA

The DA says that Public Protector Busisiwe Mkwhebane's "utterly hopeless rescission application" is an attempt to stop Parliament from impeaching her.

The lawyer for President Cyril Ramaphosa says that suspending Mkhwebane because he is being investigated as president is not a conflict of interest.

The lawyer for Mkhwebane says that the Constitution says she needs to be protected, just like judges do.

As part of her "Stalingrad litigation," Public Protector Busisiwe Mkhwebane filed a "utterly hopeless" rescission application to stop Parliament from impeaching her, the DA's lawyer told the Western Cape High Court on Thursday.

A full bench of Judges Nathan Erasmus, Mokgoatji Dolamo, and Derek Wille continued to hear Mkwhebane's request that Parliament and President Cyril Ramaphosa not continue with their plans to impeach her and suspend her.

It was over by Thursday night. We'll decide later.

On Wednesday, Mkhwebane's lawyer, Dali Mpofu SC, said that she was a "lonely woman" who was the victim of a plot by the most powerful people in society, including the President, Speaker of Parliament, Chief Justice, media, and civil society.

In March, when the Constitutional Court gave Parliament the go-ahead to keep going with the impeachment process, Mkhwebane asked the highest court to change its mind. In the end, this application was turned down on May 6.

In the meantime, the Parliament started up the impeachment process again. Speaker Nosiviwe Mapisa-Nqakula wrote to Ramaphosa to let him know, and he asked Mkhwebane why she shouldn't be suspended.

In the second part of her current lawsuit, Mkhwebane will ask the court to say that Mapisa-letter Nqakula's to Ramaphosa was illegal. She is also asking the Constitutional Court to change its decision to revoke the law.

Mkhwebane says that Ramaphosa can't fire her because she is looking into cases against him, which would be a conflict of interest.

The things being looked into are:

Bosasa; Judicial capture, from a complaint filed by EFF deputy leader Floyd Shivambu; Former defense minister (now speaker) Mapisa-Nqakula taking ANC members on a SANDF plane to Zimbabwe, from a complaint filed by ATM leader Vuyolwethu Zungula; and Ramaphosa's statement at an ANC meeting that he knows the ANC has used state funds, from a complaint filed by ANC MP Merv

Ramaphosa's lawyer, Karrisha Pillay SC, said that the first question the court would ask is whether the Public Protector had made a strong case that Ramaphosa's personal interests and his job as president were in conflict.

"My argument is that, contrary to what the Public Protector says, I will show the court that there is no conflict between official duties and private interests in all four of these cases," she said.

"Nothing to be done"

She said that Ramaphosa was or is being investigated in each of these cases, either as President or as he was before, as deputy president.

"In his official role, it is the president's job to make a decision about the suspension," she said.

Steven Budlender SC is the lawyer for the Democratic Alliance (DA), which brought the motion to the National Assembly to start removal proceedings against Mkhwebane.

He said that Mkhwebane had still been in office three years after a court found serious and bad things about her.

He said, "And she has stayed in office because she has started a campaign to stop her impeachment proceedings from being heard."

"Not a coordinated effort to prove her innocence, which is something everyone has the right to do, but a coordinated effort to stop and slow down her impeachment proceedings."

He said that she didn't agree with the Constitutional Court's unanimous decision, so she filed an application to get rid of it (which he referred to as "rescission one").

"And rescission one was hopeless, and I say this with care and thought.

"But of course we know why it was brought. It was brought so that these proceedings could be brought before this court to say: Don't do anything until rescission one is over.

"But rescission one was thrown out, which was bad for the Public Protector. And now we have the second back-out. Rescission 2 is a lost cause."

He said that the DA had done the right thing by telling it like it is.

"And what is going on in this court case is an attempt to stop the impeachment proceedings at any cost, no matter how complicated, contrived, or hopeless the legal strategy."

"Nothing but guesswork and speculation."

He talked about Mpofu's "conspiracy theory" that Mkhwebane was being set up by the most powerful people in society.

"Now, I'm sorry, but that's not a legal argument. This isn't even a political point of view. "That is just guesswork and supposition," he said.

"It shows how far this Public Protector and her lawyers will go to stop proceedings to remove her from office.

"Right now, and I'm going to say it because it's true, we're in the middle of a classic Stalingrad lawsuit," he said.

The DA is trying to get Mkwhebane to pay his own costs.

"It is time for the court to say that this is not real litigation, that it is vexatious, abusive, and uses the Stalingrad method," he said.

Mpofu said in response, "This case is not about these crazy ideas."

So, he said, "I'm not going to answer what the DA had to say."

He said that it was required by the constitution that all parts of the government protect the Public Protector's dignity so that she could do her job well.

"Mr. Budlender says that the Public Protector is to blame for Covid-19 and everything else as well."

He said that she should be protected the same way judges were.

He said that each of the investigations into Ramaphosa involved crimes that could lead to his removal from office if they were proven, and that each of these investigations was in danger.

Mpofu said, "Please stop these people from breaking the law more and more." He was talking about the Section 194 Committee, which he said broke the law when it met and decided to keep working.


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Busisiwe Mkhwebane Cyril Ramaphosa Nathan Erasmus Public Protector Busisiwe Stalingrad


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