By Lehlohonolo Lehana.
Judgment has been reserved in the National Assembly Speaker and DA’s application for direct appeal to the Constitutional Court in the long court battle with Public Protector Busisiwe Mkhwebane.
Mkhwebane argues that the Speaker and DA didn’t establish grounds for direct appeal and that the matter is not urgent, as Parliament halted the impeachment process pending the legal processes.
A Western Cape High Court ruling in July put the stop on the National Assembly’s impeachment of Mkhwebane, which was in its infancy.
While the full Bench did not declare the rules for the removal of a Chapter 9 head, such as the Public Protector, unconstitutional as a whole, it found fault with two of the rules.
The court ordered 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 is a prima facie case against a Chapter 9 head.
It was particularly on the latter rule that Advocate Dali Mpofu, SC, for Mkhwebane dwelled on during Monday’s arguments in the virtual hearing of the Constitutional Court.
The independent panel part of the process has already taken place. The panel, who recommended that the National Assembly impeach Mkhwebane, was chaired by retired judge Justice Bess Nkabinde.
Mpofu argued that allowing the appointment of a judge on the panel which should determine whether there is a prima facie case against a Chapter 9 head, is “rotten from conception”.
He says the judges are nominated by political parties and the Speaker then decides in a “dark room” which judge to appoint to the panel.
Speaker Nosiviwe Mapisa-Nqakula, in her papers, argues that it is in the interest of justice that the appeal is heard by the Constitutional Court, as it deals with constitutional matters, particularly the separation of powers.
She argued that judges may perform non-judicial functions and that nothing prevents them from being appointed to the panel.
She also argued that appointing a judge with consultation with the Chief Justice protects judicial independence.
The DA only challenges the order about the appointment of a judge to the panel, arguing it doesn’t breach the separation of powers and doesn’t threaten judicial independence.
Lawyers acting for the Democratic Alliance (DA) have outright accused Mkhwebane of trying to drag out the impeachment proceedings she’s currently facing in Parliament.
Advocate Steven Budlender SC didn’t pull any punches on Monday when he appeared before the Constitutional Court (ConCourt) justices on behalf of the DA, to try and overturn the Western Cape High Court’s setting aside of part of the rules governing the process for unseating Chapter Nine institutions’ office-bearers like the public protector.
It was argued that it was “revealing” that “Mkhwebane seems intent either on preventing this process going forward at all or on making it go forward as slowly as possible”.
The rules were adopted last year, in response to a parliamentary motion the DA had brought to remove Mkhwebane, who subsequently took the National Assembly speaker to court in a bid to have them declared unconstitutional.