Mpofu gives arguments in support of Mkhwebane
ADVOCATE Dali Mpofu said yesterday that when deciding a constitutional matter, a court should declare that any law or conduct that was inconsistent with the Constitution was invalid to the extent of the inconsistency.
Mpofu advanced the argument in the Western Cape High Court in an application brought by Public Protector Busisiwe Mkhwebane to declare the rules for the removal of heads of Chapter 9 intuitions as unconstitutional.
Mkhwebane also wants the court to determine the constitutionality of the conduct of the National Assembly’s Thandi Modise.
In addition she wants the court to determine whether the rules ought properly to be interpreted to give retrospective application, and if not to state that the conduct was in violation of the Constitution.
“If the court declares the rules unconstitutional, that is the end of it really, because what then needs to happen is that the rules will have to be reworked,” Mpofu said.
He said that if the rules were unconstitutional, then obviously all conduct that had taken place using unconstitutional rules was invalid.
Modise, the DA and President Cyril Ramaphosa are opposing the application, which is set to be heard until tomorrow.
The ATM, the PAC and the UDM are supporting Mkhwebane’s application.
Mpofu said the failure of the National Assembly to enact legislation to regulate impeachment was unconstitutional. He asked if Parliament was entitled to mimic the section 89 rules for the removal of the president.
He said no president had been impeached and those rules had not been tested.
“It might well be that which they mimic has got constitutional flaws.”
Mpofu claimed there were holes in one of the rules that provide that the head of a Chapter 9 institution may be assisted by their legal representation of choice provided he or she does not participate in committee proceedings.
“There is limitation of rights by the National Assembly,” he said. “The National Assembly is not allowed to simply limit the right to full legal representation without justification.”
He said that failure to provide justification should be contained in the law of general application.
“That particular right, for example, has been limited.”
Mpofu also insisted that the right could not be limited for the sake of it.
“The National Assembly is not permitted to restrict a fundamental right to counsel of your choice without any constitutional justification,” he said, adding that “this is a crucial constitutional principle”.
Mpofu said had Mkhwebane been offered the opportunity to be heard, she would have pointed out blatant flaws.