THREAD: We are in the Pretoria High Court this week where Judge Phillip Coppin is hearing an application by the Institute for Accountability in Southern Africa (IASA) that @AdvBMkhwebane should be declared unfit and proper person to hold office or that she abused her office. 
Apart from the office of the PP and @AdvBMkhwebane, the respondents are the President, the Speaker of the National Assembly, the Chair of the Portfolio Committee on Justice and the EFF, which will make arguments while the rest have opted to abide by the court’s decision.
Appearing for the PP and her office, Adv. Muzi Sikhakhane SC argues that the order sought from the court is exactly what the National Assembly is already seized with.
Sikhakhane: Therefore IASA’s application is an attempt at breaching the doctrine of separation of powers by asking the judiciary to meddle in matters of Parliament.
Sikhakhane: The IASA application undermines Parliamentary processes by asking the court to expedite what IASA wants done sooner than the National Assembly can practically do.
Sikhakhane: Clearly IASA knowingly seeks to utilise this court and its time to pursue a matter that is being considered by the National Assembly. For this reason alone, the IASA application should be dismissed with costs. It is a flagrant abuse of court.
Sikhakhane: The matter before the court rests with the National Assembly in terms of section 194 of the Constitution. The National Assembly needs no assistance in this regard. It is seized with the matter.
Sikhakhane: IASA brought its application purportedly on the bases of various judgments against the PP from various courts. The three judgments are PP v SARB, ABSA v PP & others and DA & CASAC v PP.
Sikhakhane: It is disputed that such judgments are a reasonable basis for IASA’s application and its attempt to usurp the powers of the National Assembly.
Sikhakhane: IASA contends erroneously on the bases of these judgements that the PP is not fit and proper to hold the position of PP and that she lacks integrity, and seeks a declarator in that regard.
Sikhakhane: IASA argues that such an order would assist the National Assembly in considering the matter of the PP’s removal from office.
Sikhakhane: We submit that this is the clearest form of abuse of court process for political reasons. It is the clearest illustration of the breach of separation of powers.
Sikhakhane: Section 194 of the Constitution expressly places the obligation for the determination of PP’s fitness to hold office on the National Assembly.
Sikhakhane: This court is being asked to do the bidding for IASA, which second-guesses Parliament.
Sikhakhane: PP contends that nothing in the cited judgments justified the order IASA seeks. The fact that courts criticize a litigant for acting irrationally or erroneously is not itself evidence that such an officer is not fit to hold office.
Sikhakhane: If this were the case, no judicial officer whose judgment has been criticized by a higher court would escape constant challenges on his/her fitness to hold office.
Sikhakhane: IASA has already laid a separate complaint against the PP with the Legal Practice Council, which is also seized with the matter.
Sikhakhane: This is a clear case of forum-shopping and burdening the court with what appears to be a political vendetta against the PP.
During proceedings, Judge Coppin repeatedly asked IASA’s counsel why the court must entertain a matter that falls within the purview of the National Assembly in terms of section 194 of the Constitution.
Judge Coppin also asked why IASA wants him to make a finding that had already been made by other courts.
Judge Coppin further asked IASA’s counsel: “If this court makes a finding in favour of IASA, which will be a decision binding on the National Assembly, what will become of the parliamentary process that is currently underway?”
Counsel for IASA said Parliament would have to take the findings into account. The judge asked: Would Parliament be at liberty to ignore the finding? Counsel for IASA said Parliament can do so if there are rational reasons.
Judge Coppin asked: “Are we now second-guessing the drafters of the Constitution? Why did they give that power [to remove PP from office] to Parliament [and not to the court]? Isn’t this application interference that goes a bit too far?”
The judge asked again: “What is the purpose of this application? Is it for opinion, news headlines, politics or something else?”
Court adjourned. Judgement has been reserved.
