Judgment reserved in Public Protector case over impeachment rules

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Public Protector Busisiwe Mkhwebane
Public Protector Busisiwe Mkhwebane
PHOTO: Jan Gerber, News24
  • The Western Cape High Court reserved judgment in Public Protector Busisiwe Mkhwebane's application against Parliament.
  • Mkhwebane asked the court to declare the National Assembly's rules for the impeachment of a Chapter 9 head unconstitutional and invalid.
  • Democracy in Action, an organisation supporting Mkhwebane, brought a similar application.

Judgment has been reserved on Friday in applications to set aside the National Assembly's rules for the impeachment of a head of a Chapter 9 institution.

This past week, the Western Cape High Court heard an application from Public Protector Busisiwe Mkhwebane to have the rules declared unconstitutional and invalid and Democracy in Action (DiA), an NPO that supports her, asked the court for a declaratory order that the National Assembly failed to pass legislation to remove the Public Protector and other heads of Chapter 9 institutions from office.

The National Assembly adopted the rules in December 2019.

Within days, DA chief whip Natasha Mazzone lodged the first motion for Mkhwebane's removal. After National Assembly Speaker Thandi Modise approved this motion, Mazzone withdrew it and lodged another, with more substantiation for the charges against Mkhwebane.

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Her application, which was heard from Monday to Wednesday, is the second part to her application. In the first, she unsuccessfully asked the High Court to stay Parliament's removal proceedings pending the outcome of the current application.

On 16 March, the National Assembly voted to impeach Mkhwebane. This after an independent three-person panel recommended this after finding prima facie grounds for her removal.

This three-person, independent panel proved to be one of the most hotly debated aspects to the case, with advocate Dali Mpofu SC, appearing for Mkhwebane, arguing Modise did not have the right to appoint judges and that Parliament could not outsource its work. 

ALSO READ | Public Protector case: 'Doubtful' that Democracy in Action acts in public interest, says Modise's lawyers

Advocate Andrew Breitenbach SC, appearing for Modise, argued while the speaker had asked political parties in Parliament to nominate suitable candidates to sit on the independent panel, she was not obliged to appoint the panel members from among those nominees.

This would avoid the perception that a judge was aligned to a particular political party, he added.

Judges Elizabeth Baartman and Mokgoatji Dolamo questioned Breitenbach on this aspect.

Advocate Steven Budlender SC, appearing for the DA, said it did not concern the Bench in this case.

He added the panel only advised Parliament and did not make a final decision, and Parliament was entitled to seek advice.

Modise is the first respondent and the president the second as well as all heads of Chapter 9 institutions and parties represented in Parliament, albeit not all of them are participating in the case.

The DA is opposing Mkhwebane's application, while the ATM, UDM and PAC support it.

Justice Minister Ronald Lamola is also a respondent to the DiA's application. 

Judge Lister Nuku heard the case with Baartman and Dolamo.

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