By Lehlohonolo Lehana.
Parliament intends appealing the High Court ruling which found fault with two of the rules for the impeachment of a Chapter 9 head, like Public Protector Busisiwe Mkhwebane.
However, MPs will first have Parliament’s legal services consider the risks of continuing the inquiry into Mkhwebane’s fitness for office, before deciding whether it will proceed.
This was the outcome of Friday’s meeting of the National Assembly Rules Committee.
The committee handling Mkhwebane’s impeachment has already been constituted, with ANC chairperson Richard Dyantyi elected as its chairperson, but it hasn’t started with the inquiry.
Last month, a full Bench of the Western Cape High Court delivered its ruling on Mkhwebane’s application to have the National Assembly’s rules for removing a Chapter 9 head declared unconstitutional, which she brought last year as the parliamentary wheels started turning on the removal process.
While it did not declare the rules unconstitutional, as a whole, it did find fault with two of the rules.
Judge Elizabeth Baartman, with the concurrence of Judges Lister Nuku and Mokgoatji Dolamo, ruled that the rules be amended to allow legal representation for a Chapter 9 head when appearing before a Section 194 committee.
It also ruled that judges should not be on the independent panel, which has to decide whether there was a prima facie case against a Chapter 9 head.
Acting speaker Lechesa Tsenoli said he was concerned the court didn’t anticipate the consequences of its ruling and made no decision for Parliament.
Tsenoli said they would consider legal advice on how it could frame the appeal, so that the matter could be handled expeditiously – with expeditiously being the key word.
Now MPs are at odds on the matter, with those from the ANC saying the proceedings should be put on hold pending a court appeal of the high court judgment, while those from the opposition disagree.
“Let parliament, through the presiding officers, appeal both findings by the court,” said ANC chief whip Pemmy Majodina.
Majodina also argued that the high court judgment also violated the constitutionally enshrined principle of the separation of powers, in that it dictated to parliament how to handle its internal arrangements.
“The separation of powers should not only come when it fits the judiciary … They must also respect the separation of powers when it comes to the legislative arm,” she said.
But Majodina went on to argue that while they are appealing the matter, impeachment proceedings against Mkhwebane should be suspended pending the appeal.
However, Corné Mulder from the FF Plus held a different view, saying a pending court decision had never stopped parliament from continuing with its own affairs as an independent arm of state.
He also warned that suspending proceedings against Mkhwebane at this stage could prove counterproductive, as the matter may drag on for years.
“I would warn against not continuing because if we stop the process, this could be drawn out for the next three or five years, appealing from one court to another until we end in the Constitutional Court after the expiry of the term of the public protector,” said Mulder.
Mkhwebane’s non-renewable seven-year term expires in 2023.
DA chief whip Natasha Mazzone also weighed in.
“I suggest that we don’t let this hinder our work going forward, we don’t let any of the court cases hinder our work. This is the second of the court cases or maybe even the third in this particular arena and we have not let that hinder our work,” said Mazzone.
“There’s a problem and this problem must be addressed.”
But ANC MP Bulelani Magwanishe, who chairs the justice portfolio committee to which Mkhwebane accounts, supported Majodina’s proposal to suspend proceedings against Mkhwebane.