By Lehlohonolo Lehana.
The Constitutional Court (ConCourt) has ruled that Parliament can proceed with its impeachment process against Public Protector Busisiwe Mkhwebane.
The ConCourt delivered its ruling on Friday after the judgment was reserved in November last year.
In a unanimous decision, the court sided with National Assembly Speaker, Nosiviwe Mapisa-Nqakula and the Democratic Alliance(DA).
The apex court found that it is permissible to appoint a judge to the independent panel set up to investigate Mkhwebane’s fitness to hold office.
The court has also agreed with the Western Cape High Court that Mkhwebane should have the right to legal representation.
“The Rules state that the National Assembly must ensure that the enquiry is conducted in a reasonable and procedurally fair manner – this requires full legal presentation,” the judgement reads.
(1/3) Judgment: Part of rule 129AD(3) which limits the right of a Chapter 9 institution officer-bearer’s to full legal representation during a section 194 enquiry for removal from office is irrational, inconsistent with the Constitution and is declared invalid.— Constitutional Court (@ConCourtSA) February 4, 2022
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.
The Constitutional Court set aside the High Court ruling that a judge should not be appointed to the independent panel, which should consider whether there is a prima facie case against the Chapter 9 institution’s head.
The Public Protector had brought an application for a cross-appeal should the ConCourt grant the Speaker and DA leave to appeal.
The apex court dismissed the Public Protector’s cross-appeal.
Parliament has welcomed the decision of the Constitutional Court that allowed it to go-ahead with the impeachment of the public protector.
Speaker Nosiviwe Mapisa-Nqakula said the judgment removed any hurdles for the process to be allowed to continue.
DA also said it welcomes the Constitutional Court judgment in which Mkhwebane was challenging the rules which govern the removal of a Chapter 9 office-bearer in terms of Section 9 of the Constitution.
The opposition party said it is pleased that the Section 194 Inquiry can now continue despite the continuous efforts by Mkhwebane to derail the process.