Court offers some relief for Mkhwebane in her failed bid to have impeachment rules declared unconstitutional

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Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Jan Gerber, News24
  • The Western Cape High Court did not declare the rules for the removal of a Chapter 9 head unconstitutional. 
  • It did, however, rule that Public Protector Busisiwe Mkhwebane must be allowed legal representation when appearing before the Section 194 committee.
  • The committee will only finish its report in January next year, and would most likely only be before the National Assembly by the end of February.

The Western Cape High Court did not declare the rules for the impeachment of a Chapter 9 head unconstitutional as Public Protector Busisiwe Mkhwebane asked it to do.

The ruling did, however, offered some relief for Mkhwebane.

Judges Elizabeth Baartman, Lister Nuku and Mokgoatji Dolamo ruled the rules were amended to allow a Chapter 9 head legal representation when appearing before a Section 194 committee.

It also ruled judges should not be on the independent panel that decided whether there was a prima facie case against a Chapter 9 head.

READ | Zuma to jail: Mkhwebane prefers minority judgment which disagreed with 15 months sentence

The committee met on Wednesday and adopt a provisional programme, which is still subject to change.

It is expected to finish its work in mid-January next year, more than two years after a motion for Mkhwebane's removal was first lodged with Parliament.

According to this programme, it will have hearings through most of October, with two days set aside to engage with her.

The committee aims to adopt a report on 17 November, to which Mkhwebane can respond in 30 days.

Its members then have another 30 days to consider her response.

The committee plans to adopt its final report on 13 January.

READ | Mkhwebane believes she will be cleared of wrongdoing after damning panel report

The National Assembly usually reconvenes in mid-February, when it deals with the State of the Nation Address before it handles any other business, like adopting committee reports.

In all likelihood, the report may only come before it by the end of February.

READ | A 'confession letter', double jeopardy and dignity - Mkhwebane asks court to quash impeachment rules

If the committee recommends Mkhwebane's removal, the support of a two-thirds majority is needed to enforce the recommendation.

The committee also heard from Parliament's legal services, which outlined three ways in which it could conduct its business.

It decided to follow a hybrid approach, where MPs lead the process, but with added external forensic support to assist it in unpacking the evidence. In this hybrid scenario, the external support's role will be more limited compared to an evidence leader.

The exact role of the support will need to be determined by the committee.

For example, such a resource may provide a summary to the committee on each charge and the related evidence, identify issues that require further probing and assist with the formulation of questions. Members will retain the lead and will be actively involved.

READ | Mkhwebane fights impeachment rules, tells court: 'Thandi Modise is standing with the DA'

The committee also decided to adopt a narrow scope, meaning its work will be limited to the motion the National Assembly adopted in March, and not include conduct that does not relate to those charges.

The National Assembly adopted rules for the removal of a Chapter 9 head in December 2019.

Days later, DA chief whip Natasha Mazzone lodged her first motion with National Assembly Speaker Thandi Modise. In February, Mazzone withdrew this motion and lodged another, with more substantiation.

The process was hamstrung when Parliament had to deal with the Covid-19 pandemic.

*This story has been updated.

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