MPs divided on removal proceedings against Busisiwe Mkhwebane

MPs are divided on whether parliament should “put on hold” or go ahead with removal proceedings against public protector Busisiwe Mkhwebane after a high court ruling that found sections of parliament's impeachment rules were unconstitutional.

This became clear at the meeting of the National Assembly's rules committee on Friday, which met to discuss the implications of last month's Western Cape High Court ruling that found in favour of the embattled Mkhwebane in two parts on the recently adopted rules on the removal of heads of Chapter Nine institutions.

In the first instance, the high court found that the impeachment rules were unconstitutional because one of the members who made a determination that there was a prima facie case of removal from office against Mkhwebane was a judge who recently left judicial office.

In the second part, it declared the rules unconstitutional because the public protector would not be allowed legal representation when a parliamentary ad hoc committee conducts an inquiry into her fitness to hold office in terms of the section 194 of the constitution.

The section 194 committee had already been instituted by parliament and was ready to start proceedings against Mkhwebane until the high court threw a spanner in the works.

Now MPs are at odds on the matter, with those from the ANC saying the proceedings should be put on hold pending a court appeal of the high court judgment, while those from the opposition disagree.

“Let parliament, through the presiding officers, appeal both findings by the court,” said ANC chief whip Pemmy Majodina.

Majodina also argued that the high court judgment also violated the constitutionally enshrined principle of the separation of powers, in that it dictated to parliament how to handle its internal arrangements.

“The separation of powers should not only come when it fits the judiciary ... They must also respect the separation of powers when it comes to the legislative arm,” she said.

But Majodina went on to argue that while they are appealing the matter, impeachment proceedings against Mkhwebane should be suspended pending the appeal.

“The only thing that we can do is to put on hold the functioning of this committee right now, until this process of appeal goes through so that we are not seen as undermining that ruling,” she said.

However, Corné Mulder from the FF Plus held a different view, saying a pending court decision had never stopped parliament from continuing with its own affairs as an  independent arm of state.

He also warned that suspending proceedings against Mkhwebane at this stage could prove counterproductive, as the matter may drag on for years.

“I would warn against not continuing because if we stop the process, this could be drawn out for the next three or five years, appealing from one court to another until we end in the Constitutional Court after the expiry of the term of the public protector,” said Mulder.

Mkhwebane's non-renewable seven-year term expires in 2023.

DA chief whip Natasha Mazzone also weighed in.

“I suggest that we don't let this hinder our work going forward, we don't let any of the court cases hinder our work. This is the second of the court cases or maybe even the third in this particular arena and we have not let that hinder our work,” said Mazzone.

“There's a problem and this problem must be addressed.”

But ANC MP Bulelani Magwanishe, who chairs the justice portfolio committee to which Mkhwebane accounts, supported Majodina's proposal to suspend proceedings against Mkhwebane.

“I want to align myself with the views expressed by the chief whip. I mean if we're going to appeal the issue of legal representation, that's a very weighty issue and if you're appealing that then you can't proceed until there's clarity on it. I think we need to get certainty around it,” he said.

Acting National Assembly speaker Lechesa Tsenoli, who was chairing the meeting, requested parliament's legal advisers to provide written advice on the “risks” of suspending or proceeding with the process against Mkhwebane pending their appeal.

“Risks must be assessed from both sides,” he said.

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