Busi faces impeachment

CONCOURT RULES: PUBLIC PROTECTOR CAN HAVE LEGAL REPRESENTATION From 2017-2019, DA initiated motions for Mkhwebane’s removal.

Speaker welcomes court’s decision to dispose of the matter

The Constitutional Court (ConCourt) has ruled parliament can proceed with its impeachment process against Public Protector Busisiwe Mkhwebane. In the judgment, Justice Nonkosi Mhlantla ruled that Mkhwebane was allowed to be legally represented during the impeachment inquiry in the National Assembly.

“The rules state that the National Assembly must ensure the inquiry is conducted in a reasonable and procedurally fair manner. This requires full legal presentation,” said the judge.

The ConCourt further granted National Assembly Speaker Nosiviwe Mapisa-Nqakula and the Democratic Alliance (DA) direct appeal against a Western Cape High Court ruling due to the matter being “urgent” and of “public importance”.

Parliament and the DA approached the ConCourt for direct access after the Western Cape High Court in July last year ruled in favour of Mkhwebane, and declared certain sections of the current rules for the removal of heads of Chapter 9 institutions to be unconstitutional.

Mkhwebane’s cross-appeal application was dismissed in its entirety by the ConCourt.

The public protector had brought an application for a cross-appeal should the ConCourt grant the speaker and DA leave to appeal. She was further ordered to pay the costs of the DA.

Mkhwebane was appointed as the public protector in October 2016. Between 2017 and 2019, the DA initiated several motions in the National Assembly to have her removed from office.

The portfolio committee submitted a report which concluded that there were no rules for the removal of Chapter 9 institution office bearers. As a result, the rules were drafted, and adopted by the National Assembly on 3 December, 2019.

The rules provide for a 17-step process for the removal of Chapter 9 institution office bearers from office.

Mkhwebane yesterday welcomed the judgment, which “affirmed the right of heads of Chapter 9 institutions to be represented by a legal representative of their choice in the event of impeachment proceedings to ensure fairness and compliance with the constitution”.

Parliament spokesperson Moloto Mothapo said the court had “provided clear guidance on the correct phrasing of the rule regarding the participation of a legal representative in the removal process, ruling that the rule be amended to read that the ‘holder of a public office must be afforded the right to be heard in his or her defence and to be assisted by a legal practitioner or other expert of his or her choice’”.

“The court made it clear this does not imply that the section 194 committee cannot ask the public protector to personally respond to questions put to her,” Mothapo said.

“This was contrary to the public protector’s contention for the rules to be declared unlawful.

“We agree with the judgment that this was a clear tactic to delay the proceedings of the section 194 committee.”

Mothapo said it was important that “the court noted it was regrettable the public protector had failed to comply with the rules of the Constitutional Court in her ‘application’ to cross-appeal”.

“However, the court considered it expedient to deal with the issues notwithstanding, to avoid a further potential abuse where the public protector could likely apply to the Supreme Court of Appeal to hear her appeal,” Mothapo said.

“This would have caused further delays. The speaker welcomes the court’s decision to finally dispose of the matter.”

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