Mkhwebane's actions 'the antithesis of accountability': DA counsel Steven Budlender

The speaker of the National Assembly and the DA defended parliament's impeachment rules before the Constitutional Court

13 November 2021 - 13:07 By Franny Rabkin
The DA told the Constitutional Court that the public protector seemed to be seeking to prevent her impeachment process from going forward. File photo.
The DA told the Constitutional Court that the public protector seemed to be seeking to prevent her impeachment process from going forward. File photo.
Image: Esa Alexander/Sunday Times

 

In the Constitutional Court this week the DA accused public protector Busisiwe Mkhwebane of seeking to altogether avoid accounting to parliament for that for which she stands to be impeached. Despite a lengthy argument by her counsel, she did not rebut this accusation.

Mkhwebane faces impeachment on a number of grounds of misconduct and incompetence arising from scathing rebukes in court judgments over the years. In particular, the Constitutional Court in 2019 ordered that Mkhwebane personally pay costs in the litigation over her Reserve Bank/Bankorp report, saying she “had not been candid”, had “acted in bad faith”, was “not honest”, that she put forward “a number of falsehoods”, and had made “misrepresentations under oath”.

Addressing the highest court on Monday, counsel for the DA, Steven Budlender SC, said: “This case is not about whether Ms Mkhwebane has committed gross misconduct. It’s not about that she will be removed, or should be removed. But what it is about, is whether the process should be allowed to take its course.”

The highest court was hearing an application for leave to appeal against Mkhwebane’s successful court challenge to parliament’s newly developed rules for the impeachment of the heads of Chapter 9 institutions.

Mkhwebane had originally challenged the rules on 12 different grounds. Two were successful: the high court found the rules unconstitutional because first, they prohibit the participation of the lawyers during the parliamentary committee stage of the impeachment process.

Second, the high court said it was unconstitutional that the rules allowed for the inclusion of a judge on an independent panel that conducts a preliminary assessment — before the committee phase — on whether the public protector had a case to answer.

If the judgment were to stand as is, it would mean the impeachment process already under way against Mkhwebane would have to begin from scratch. This is because there has already been a preliminary panel, chaired by retired Justice Bess Nkabinde, that delivered its report to parliament in March last year. The panel found that Mkhwebane did indeed have a case to answer.

If Mkhwebane’s arguments were to succeed, it could mean no impeachment process at all. Budlender said when the DA first brought a motion to impeach Mkhwebane she objected on the basis that there were no rules in place for the impeachment process.

Then, when parliament responded by developing rules, she insisted that the rules were forward-looking only and could not apply to conduct that happened prior.  

“That is the very antithesis of accountability,” said Budlender.

Her counsel Dali Mpofu SC did not dispute that the effect of his argument was that Mkhwebane would not have to answer to the judicial criticism of misconduct and incompetence. Instead he appeared to argue that this was the intention of parliament. He argued that there was a presumption in law that legislation, and rules, were forward looking; and that if the rules were going to apply retrospectively, this had to be the clear intention of the drafters and needed to be stated explicitly.  

In his written argument, he added: “We cannot imagine a situation where overnight all Chapter 9 heads are faced with complaints of misconduct, for the things that happened prior to the adoption of the Rules, that would result in chaos and absurdity, unless of course the rules are aimed at targeting the public protector alone.”         

Prospectivity and retrospectivity were at the centre of another, separate, point of dispute in the case: Budlender argued that there was nothing unconstitutional about having a judge on the preliminary panel. But if the ConCourt disagreed with him, it should still vary the high court’s order. This was because if the high court’s order were to remain in place, it would mean the impeachment process would have to start from scratch — because it would mean the Nkabinde panel was unlawful.

The court should not force the impeachment process against Mkhwebane to start from square one, he argued.

“It cannot be said that Ms Mkhwebane was prejudiced by having a retired judge on her panel. If anything, she benefited from it,” he said, adding that the panel’s view was not a binding one. “On the other hand, you’ve got the massive dislocation and delay that would result by sending this process back to square one,” said Budlender.

But Mpofu said that once the rules were unconstitutional, Mkhwebane could not be subject to impeachment by them. They were “fruits of a poisoned tree,” he said.

Counsel for the speaker of parliament, Andrew Breitenbach SC, focused his argument on the other ground of unconstitutionality found by the high court: that, unlike with the impeachment of the president and judges, when it comes to Chapter 9 heads, lawyers may be present and they may assist, but they may not participate at the committee stage of the impeachment process.

Breitenbach said the differentiation between the president and Chapter 9 heads was rational in law because when a president is impeached, the consequences are severe, including prohibiting him from serving any public office in the future and losing all his benefits. It is not punitive in the same way for the heads of Chapter 9 institutions.

He said the purpose of excluding lawyers was to make the heads of Chapter 9 institutions “personally accountable”.

“Parliament wishes to hear from her,” he said.

Facing a number of questions from the bench, Breitenbach argued that while it may be that the justices might have drafted the rules differently, for the court to find irrationality in law, there must be no rational connection at all between the rule and its purpose.

Otherwise, the court would be trespassing onto the terrain of parliament and breaching the separation of powers, he argued.

Judgment was reserved.  

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