Mkhwebane’s impeachment process to resume next week

Parliament is expected to resume its impeachment process against Public Protector (PP) Busisiwe Mkhwebane next Tuesday.

The Constitutional Court earlier this month ruled that the house can proceed with the process in a judgment that was reserved in November last year.

Former National Assembly Speaker Thandi Modise and the Democratic Alliance (DA) filed their papers for leave to appeal directly to the ConCourt after a court order ruled in favour of Mkhwebane, thus halting the impeachment process.

At the time, the Western Cape High Court declared that certain sections of Parliament’s rules for the removal of office-bearers of Chapter 9 Institutions were unconstitutional.

The High Court ruled that the limitation on the right to legal representation for a Chapter 9 head, such as the Public Protector, was irrational, and ordered that the rules be amended.

It also ruled that a judge should not sit on the independent panel that determines whether there’s a prima facie case for a Chapter 9 head.

Mkhwebane had approached the High Court to challenge the constitutionality of the rules, which were drafted and adopted by the National Assembly in December 2019.

Legal presentation

In a unanimous judgment penned by Justice Nonkosi Mhlanta, the ConCourt granted Parliament and the DA direct appeal due to the matter being “urgent” and of “public importance”.

The ConCourt also indicated that Mkhwebane is allowed to be legally represented during the impeachment proceedings in the National Assembly.

“The rules state that the National Assembly must ensure that the inquiry is conducted in a reasonable and procedurally fair manner – this requires full legal presentation. As a result, the appeal against this order of the High Court failed,” the judgment reads.

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The apex court further found that the Western Cape High Court “erred” in its ruling that a judge should not be appointed to the independent panel “as it asked the wrong question”.

“This court held that the High Court erred when it severed part of rule 129V, which relates to the appointment of a judge to the independent panel. The appeal on this ground was upheld, and the order set aside,” the judgment said.

Meanwhile, Mkhwebane’s cross-appeal application was dismissed in its entirety because the Public Protector “did not comply with the procedure for bringing a cross-appeal” before 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.