The Western Cape High Court on Monday is expected to hear Public Protector Busisiwe Mkhwebane’s latest application challenging the constitutionality of parliament’s impeachment rules against her.
In March, the National Assembly voted in favour of establishing an ad hoc committee to investigate Mkhwebane’s fitness to hold office.
This followed a recommendation by an independent review panel that was established by speaker Thandi Modise in 2020 after the DA tabled a motion for Mkhwebane’s removal from office. The panel found substantial information that constitutes prima facie evidence of incompetence and misconduct against the public protector.
Mkhwebane wants the Western Cape High Court to declare parliament’s impeachment rules unlawful, unconstitutional, invalid, null and void. The rules were adopted by parliament on 3 December 2019 to deal with the removal of Chapter 9 institutions office bearers.
The high court in October last year dismissed Mkhwebane’s urgent application to interdict parliament’s removal proceedings against her with costs. This will be the second part of her application. At the time, the court said it was satisfied the balance of convenience favoured the National Assembly to go ahead with the proceedings in terms of Section 194 of the Constitution and the National Assembly rules.
In November, Mkhwebane appealed the court’s ruling but it was dismissed. She also approached the Constitutional Court (ConCourt) in March this year, but her application for direct leave to appeal was also dismissed by the ConCourt.
The second part of her application will be heard on Monday virtually by Judges Lister Nuku, Elizabeth Baartman and Mokgoatji Dolamo.
Mkhwebane, who is being represented by advocate Dali Mpofu, argues in her court papers that parliament’s impeachment rules are in breach of her constitutional rights insofar as her conditions of employment. She also argues that the rules are being applied retrospectively to target her.
The hearing is set down from 7 to 9 June 2021.