This is how Mkhwebane plans to fight impeachment. Does she have a case?

It is a “logical and legal impossibility” for an impeachment process to go ahead against public protector Busisiwe Mkhwebane — the rules of parliament prevent it, says Mkhwebane’s counsel, Dali Mpofu SC, in written argument to the Western Cape High Court. 

Mkhwebane faces impeachment on a number of grounds of misconduct and incompetence, including findings of dishonesty and acting in bad faith by the Constitutional Court. Her legal challenge to the constitutionality of parliament’s impeachment rules and impeachment process against her begins on Monday. 

It will be heard by judges Elizabeth Baartman, Mokgoatji Dolamo and Lister Nuku. Nuku was allocated to the case after Western Cape judge president John Hlophe, who had originally allocated himself to hear the matter, recused himself after a letter from the DA. The DA is a party to the case, as it was DA MP Natasha Mazzone who brought the impeachment motion in parliament.

Mkhwebane wants the high court to declare that the rules under which the process is being conducted are unconstitutional. She is challenging the rules and the process on a number of grounds — 12 in all.

Mkhwebane had tried to interdict the impeachment process from going ahead but failed in the Western Cape High Court in November. An application for leave to appeal to the Constitutional Court was refused in March. 

With no interdict, parliament has pressed ahead with the impeachment process. In February an independent panel chaired by retired Constitutional Court judge Bess Nkabinde found that, on a prima facie basis, she did have a case to answer on a number of grounds of misconduct and incompetence. In March the national assembly decided that a parliamentary impeachment inquiry was warranted.

In an affidavit filed in court last week, which speaker Thandi Modise’s legal team will seek to have admitted on Monday, Modise updated the court on how far the impeachment process had got. She said that the ad hoc parliamentary committee — with members of all the political parties in parliament — that would conduct the inquiry had been established. 

The committee will have 36 members and each will have a vote, but the numbers of members per party will be proportional to their membership of parliament. The ANC will have 19 members, the DA will have four and the EFF will have two and all other parties one, said Modise.   

But Mkhwebane wants the high court to declare that the rules under which the process is being conducted are unconstitutional. She is challenging the rules and the process on a number of grounds — 12 in all, says Mpofu.

The impeachment rules have not been used before and were only developed recently. One of Mkhwebane’s grounds is that the rules should not be applied retrospectively, or applied to conduct that happened before their enactment. “The presumption against retrospectivity is a manifestation of the rule of law,” says Mpofu, quoting case law that says conduct should ordinarily be assessed under the law that existed at the time. He says that the speaker and the DA have not rebutted this presumption.

But Modise’s counsel, Andrew Breitenbach SC, says it was always the law that the public protector could be impeached by parliament for misconduct and it would be “absurd” for the new rules not to apply. It would mean that no misconduct “however grave” before the rules being adopted could lead to an impeachment. Even if the head of a chapter nine institution admitted to committing a serious crime, they could not be impeached if it happened before the rule, he said.

Another argument by Mkhwebane is that the rules are unconstitutional because they do not allow Mkhwebane to have a lawyer speak on her behalf during the parliamentary inquiry. Breitenbach says Mkhwebane is, under the rules, entitled to be assisted by a lawyer but not to have a lawyer speaking on her behalf, as the constitution requires that “she is accountable personally”. She is also “no hapless accused” as, by law, she is required to be legally qualified and highly experienced. 

But Mpofu says that former US president Donald Trump had a “large array of private lawyers” assisting at his impeachment trial and it could not “by any stretch of the imagination or logic” be argued that he was not held personally accountable.

Mpofu says that the rules of parliament prohibit MPs from discussing the merits of matters that are before court. This very court case therefore prevented impeachment proceedings, he said. “In the premises, the attitude of the speaker and the DA in forging ahead with the removal process ... is a logical and legal impossibility.” That they did so, warrants a punitive costs order, he says.

But Breitenbach says the rule does not preclude MPs from performing their oversight functions — their duty under the constitution — or for that matter from initiating or participating in impeachment processes.