Constitutional court judgment clears way for impeachment of public protector

The impeachment proceedings against public protector Busisiwe Mkhwebane can proceed, the constitutional court ruled on Friday. 

But the apex court dismissed the appeal by national assembly speaker Nosiviwe Mapisa-Nqakula against a decision of the Western Cape high court that granted Mkhwebane the right to full legal representation during the impeachment process.

The court also dismissed Mkhwebane’s challenge against the inclusion of a judge in the independent panel that will advise parliament about her removal.

This comes after Mapisa-Nqakula and the main opposition Democratic Alliance party combined their application for direct access to the highest court and leave to appeal a ruling handed down in July 2021 by the Western Cape high court.

Mkhwebane had succeeded on two of the 12 rules she challenged. The rules, adopted by the national assembly in 2019, provide for a 17-step process for the removal of office bearers of Chapter 9 institutions such as the public protector.

One of the rules was for a three-person panel to advise parliament on the removal of the public protector. Mkhwebane had argued that the inclusion of a judge would threaten the separation of powers principle and subject her to double jeopardy. She lost this bid. 

“It is apparent that the impartiality, independence and lack of bias of a judge places a judge in the perfect position to perform this function. Furthermore, the judge is appointed in consultation with the chief justice, which safeguards the separation of powers doctrine,” constitutional court judge Nonkosi Mhlantla ruled on Friday.

The constitutional court concurred with the high court that a reasonable and fair procedure required full legal representation, and that this would not detract from holding the public protector accountable. This means that Chapter 9 institutions’ office bearers can let their lawyers speak on their behalf, make representations for them and object to certain questions. 

“The rules state that the NA [National Assembly] must ensure that the enquiry is conducted in a reasonable and procedurally fair manner — this requires full legal representation. As a result the appeal against this order of the high court has failed,” said Mhlantla. 

The national assembly speaker welcomed the ruling, saying the court made it clear that its ruling did not imply that the committee could not ask the public protector to personally respond to questions put to her, and that the cross-appeal was “clear tactics on the part of the public protector to delay the proceedings of the committee”.

Anathi Madubela is an Adamela Trust business reporter at the M&G.

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Anathi Madubela
Anathi Madubela is a business journalist with a keen interest in the retail sector.

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