/ 9 November 2021

ConCourt reserves judgment on bid to appeal Mkhwebane ruling

In the firing line: The future is uncertain for public protector Busisiwe Mkhwebane after the Constitutional Court found that she did not fully understand her duties.
In the firing line: The future is uncertain for public protector Busisiwe Mkhwebane after the Constitutional Court found that she did not fully understand her duties. (Felix Dlangamandla/Netwerk24)

The Constitutional Court has reserved judgment in an urgent application for leave to appeal the high court judgment that found parliament’s rules for an inquiry into the removal from office of the public protector were, in part, invalid.

The judgment is being challenged by the speaker of parliament and the Democratic Alliance. The two combined their application for direct access to the apex court 

and leave to appeal the ruling handed down in July.

Busisiwe Mkhwebane had challenged the rules on 12 grounds and succeeded on two. 

The first was that a legal representative advising the head of a chapter nine institution facing impeachment may not actively participate in the committee established by parliament to probe their fitness to hold office.

The second was the inclusion of a retired judge on the independent advisory panel that found prima facie evidence of misconduct and incompetence on her part, including instances of overreach, repeated legal errors and a lack of procedural fairness raised by the courts in a number of scathing review judgments on her findings.

The Western Cape high court upheld Mkhwebane’s contention that limiting legal representation was unfair, and that the inclusion of former Constitutional Court justice Bess Nkabinde on the panel violated the principle of separation of powers.

The speaker is seeking to appeal the judgment on both counts, whereas the challenge by the DA speaks only to the finding on rule 129 AD relating to the composition of the panel.

Advocate Andrew Breitenbach, for the speaker, argued that the apex court should grant direct access because the case raised constitutional issues and had important and sensitive political implications given that it touched on the separation of powers between the judiciary and parliament in several ways.

This included the extent to which the courts could intervene on rules that parliament devised for itself to give effect to its constitutional obligations, in this case its duty under section 194 to hold chapter nine office bearers accountable.

Breitenbach submitted that the high court had erred when it applied the rationality test to the rule that lawyers may not lead evidence or present argument in that process. This was to ensure that office bearers “speak for themselves” when facing the committee conducting an impeachment inquiry.

“As the court knows, the powers of the court to interfere on rationality grounds are constrained … the issue is not whether there are other means which the court would have preferred but whether the means are rationally related to the end,” he said.

In this instance, the rule “is rationally related to ensuring that they are personally accountable”.

The high court erred too, he argued, in finding that it was unconstitutional for a judge to serve on the intermediary panel, partly on the grounds that the process was political and that it could open the judiciary to further attack of bias.

Justice Nonkosi Mhlantla noted that the high court showed a particular concern about “the risk of judicial entanglement in matters of political controversy”.

But advocate Steven Budlender, for the DA, said the high court had confused the objective test of whether it was permissible to have a judge on a panel of this nature and a more subjective inquiry as to whether it was desirable in this particular case.

“On the objective question, there is no showing in my submission that it is so inherently entangling with political matters that you would always wish to exclude a judge. 

“It might be different if the judge was deciding whether the public protector had indeed committed the wrong concerned … or the judge was deciding the removal. In this case, all the judge is doing is the legal screening and that does not involve political entanglement, any more than it involves political entanglement when you hear cases between the ANC and the DA,” he said.

“Of course there is a political context, and the politics are hot, but that does not mean political entanglement.”

Advocate Dali Mpofu, for Mkhwebane, countered that the nomination of a judge to the panel was tainted because it was done by politicians before it was approved “in a dark room” by the speaker, herself a political being, and the proviso that there be consultation with the chief justice could not remedy this. 

On the separation of powers, both parliament and the DA argued that it was not absolute and that judges were allowed to perform other functions, especially where these were closely related to the core function of the judiciary.

In this case, the work of the panel required a level of independence and legal skill that made it preferable to include a judge. 

“The question is not whether there are other lawyers who could do it, of course the answer is yes, but that is not the correct question,” Budlender said.

“The high court misdirected itself. It proceeded by asking the wrong question and it came to the wrong answer because it failed to apply this court’s jurisprudence under NSPCA and Heath [two previous constitutional court rulings] and as a result its decision cannot be upheld.”

The applicants argued that the matter was urgent because the issue regarding the public protector remains “live” and in need of resolving. 

The rules were adopted by the National Assembly in December 2019 and Mkhwebane launched her high court review application in February 2021.

Now, she has sought leave to cross appeal should the constitutional court grant the DA and parliament direct access. Her cross-appeal is directed against the high court’s dismissal of seven points of attack on the rules governing the impeachment inquiry and that court’s refusal to grant her a punitive and personal costs order against the former speaker, Thandi Modise.