The rules of parliament drafted to deal with the removal of the public protector exceeded the bounds of the constitution by attempting to qualify the grounds for impeachment, advocate Dali Mpofu argued on behalf of Busisiwe Mkhwebane in the Western Cape high court on Monday.
Stressing that Mkhwebane’s challenge to the process had nothing to do with her guilt or innocence, Mpofu told the court that the question of lack of constitutionality could be applied “like a refrain” to the legislature’s rules.
He pointed to section 194(1)(a) of the constitution, which gives the acceptable grounds for removal of the incumbent as “misconduct, incapacity or incompetence”, and said others may be imputed to the National Assembly.
In a statement issued on Monday morning, parliament stated that the rules “merely operationalise the grounds for removal of chapter nine office bearers and do not tamper with the grounds for their removal”, as specified in the constitution.
But Mpofu argued that by introducing definitions for misconduct, namely “gross” and “intentional”, along with “sustained” and “demonstrated” incompetence, it goes beyond the confines of the section.
Counsel for speaker Thandi Modise, in their heads of argument, counter this, saying the drafters of the constitution left the details relating to these grounds to the National Assembly to spell out its own rules regulating the impeachment process.
But Mpofu also argued that those who drafted the parliamentary rules failed to make these retrospective; hence, they could not apply to the alleged instances of misconduct cited as grounds for Mkhwebane’s removal.
“That statute was only enlivened by the drafting of the rules,” he submitted.
“If it does not say it is retrospective; it is not retrospective … It is a basic, basic mistake but a fatal one,” Mpofu said, adding that the legislators who wrote the rules could easily have cured this defect, but failed to do so.
He submitted that, on the whole though, the other constitutional flaws in the rules were so grave that these could not be salvaged and that the court should declare them invalid and send MPs back to the drawing board.
This included a violation of the principle of separation of powers by firstly relying on adverse court findings as the grounds for impeachment, and secondly, naming a judge to head the independent panel that found in March that there was prima facie evidence of incompetence and misconduct on Mkhwebane’s part, and recommended the legislature refer this to a committee for further investigation.
The panel was headed by former Constitutional Court justice Bess Nkabinde, and the National Assembly a fortnight later adopted the report before, in April, naming the members of the committee.
According to Mpofu, there is nothing in the constitution that enables the speaker to nominate a judge to perform any duty and the proviso, in this case, that this be done in consultation with the chief justice, appears to be a woefully inept attempt to salvage the legality of the step.
“That is aggravation — you are implicating our chief justice in an illegality,” he argued.
But the speaker’s counsel is expected to argue on Tuesday that the country’s constitutional model allows the performance of some non-judicial functions by the judiciary, especially if these are closely connected with the functions of the judiciary.
Mpofu also contended that parliament violated the audi alteram partem rule by not giving Mkhwebane a hearing without delay after the appointment of the panel to allow her to refute the grounds for removal. This was in breach of procedural fairness in a matter that was intrinsically punitive, in that it concerns her removal from office.
Worse still, he added, the speaker failed to give Mkhwebane the reasons for parliament’s decisions at the earliest opportunity.
“That is called thumbing your nose at somebody. You are saying ‘No, I am not going to give you reasons but, you know, somewhere in the middle of the litigation, I will give you the reasons.’ By that stage, who cares really, because we are now all steeped in litigation,” Mpofu said.
He asked that the court punish Modise with a punitive and personal cost order for embarking on an irrational process. She had, moreover, abandoned impartiality by agreeing with the views of the Democratic Alliance, which tabled the motion for Mkhwebane’s impeachment.
“This court has a duty to send a message to public officials that they must not abuse their office to even take sides. The speaker in this case has shown all the signs of siding with the DA and … whether she thinks the DA is correct or not, her duty is to be impartial,” Mpofu said.
The hearing is set to continue on Tuesday 8 June. Mkhwebane lost an earlier bid to halt the parliamentary process pending the outcome of her review application on the rules. In the preliminary inquiry, the panel considered some of the most damning court judgments Mkhwebane has incurred since taking office in 2016, including the high court and the Constitutional Court’s pronouncements on her 2017 Bankorp-Absa report. It concluded that the remedy for recurrent incompetence was not legal review, but removal.