Parliament may have to start 'from scratch' in holding Mkhwebane accountable, says DA in court papers

19 August 2021 - 16:01 By Franny Rabkin
Public protector Busisiwe Mkhwebane. File photo.
Public protector Busisiwe Mkhwebane. File photo.
Image: Esa Alexander/Sunday Times

If allowed to stand, the recent high court judgment on parliament’s impeachment rules would force it to start “from scratch” in holding public protector Busisiwe Mkhwebane accountable, the DA said in court papers.

The party, which brought the impeachment motion against Mkhwebane in parliament, on Thursday filed its application to the Constitutional Court to appeal against the Western Cape High Court’s judgment that found parliament’s impeachment rules for the heads of chapter nine institutions unconstitutional.

A day earlier, the speaker applied to appeal and acting speaker Lechesa Tsenoli said he would recommend that the process for Mkhwebane be suspended in the meantime. Both have approached the highest court urgently, with the DA saying that, for as long as it takes the appeal to be determined, the National Assembly is “precluded from its constitutionally entrenched function”.

“This is obviously a very serious concern and the appeals consequently need to be resolved expeditiously,” said the DA’s attorney Elzanne Jonker in an affidavit to the Constitutional Court.

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The high court judgment invalidated steps that had already been taken in the process for Mkhwebane’s impeachment — in particular the preliminary assessment by an independent panel chaired by retired Constitutional Court justice Bess Nkabinde. The panel found that Mkhwebane had a case to answer for misconduct and incompetence.

When Mkhwebane challenged the constitutionality of the rules, she did so on 12 separate grounds. The majority of these were dismissed, but two were upheld. One was about the constitutionality of the prohibition on lawyers participating in the proceedings before a parliamentary impeachment committee. Jonker said the DA was not appealing against the high court’s finding on this score.

The other was that the high court agreed it was unconstitutional — a breach of the separation of powers, it said — that a judge could be part of the independent panel that made a preliminary assessment of whether there were prima facie grounds for impeachment.

Jonker said the high court was wrong in how it interpreted the law on the separation of powers and the independence of the judiciary, with SA’s separation of powers doctrine having at its core the purpose of “ensuring accountability, responsiveness and openness”.

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It is a matter of the utmost public importance that the suitability of a public protector who has been repeatedly rebuked by our courts is swiftly and finally resolved.
Elzanne Jonker, attorney for DA 

“Checks and balances do not exist for their own sake. The separation of powers in South Africa is uniquely designed to promote the principle of effective and accountable governance, and not simply as a theoretical divide with no instrumental value,” Jonker said. 

Judges were ideally placed to do what is required of the independent panel under the impeachment rules and would enhance the impartiality and effectiveness of its work, she said.

That the choice of the judge must be agreed to by the chief justice was a further safeguard. “If the chief justice, as head of the judiciary, has any reservations about the propriety of appointing a particular judge to an independent panel ... he or she can and should simply refrain from agreeing to that appointment,” said Jonker.

The DA has asked the ConCourt, if it agrees with the high court, to make its order forward looking only — so that parliament does not have to begin afresh in Mkhwebane’s case.

Jonker said there was no suggestion that the appointment of Nkabinde was party-political or that her integrity or that of the judiciary was impugned.

“On the other hand, the interests of society favour moving forward ... It is a matter of the utmost public importance that the suitability of a public protector who has been repeatedly rebuked by our courts is swiftly and finally resolved.”