Bernadette Wicks
Senior court reporter
3 minute read
8 Nov 2021
2:44 pm

Mkhwebane ‘avoiding accountability’ by ‘dragging out’ impeachment, ConCourt told

Bernadette Wicks

It has been argued that it us 'revealing' that 'Ms Mkhwebane seems intent either on preventing this process going forward at all or on making it go forward as slowly as possible'.

Public Protector Busisiwe Mkhwebane. Picture for illustration: TEBOGO LETSIE

Lawyers acting for the Democratic Alliance (DA) have outright accused Public Protector Busisiwe Mkhwebane of trying to drag out the impeachment proceedings she’s currently facing in Parliament.

Advocate Steven Budlender SC didn’t pull any punches on Monday when he appeared before the Constitutional Court (ConCourt) justices on behalf of the DA, to try and overturn the Western Cape High Court’s setting aside of part of the rules governing the process for unseating Chapter Nine institutions’ office-bearers like the public protector.

It was argued that it was “revealing” that “Ms Mkhwebane seems intent either on preventing this process going forward at all or on making it go forward as slowly as possible”.

The rules were adopted last year, in response to a parliamentary motion the DA had brought to remove Mkhwebane, who subsequently took the National Assembly speaker to court in a bid to have them declared unconstitutional.

In the end, a full bench of the high court found unconstitutional a provision which allowed a judge to sit on the independent panel that determines whether there’s a prima facie case, and another which barred subjects of these kinds of proceedings from having full legal representation.

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It stopped short of throwing the rules out in their entirety, and instead simply severing the offending provisions.

This, however, still had the result of placing on ice the current proceedings against Mkhwebane – which were at an advanced stage, with an independent panel retired ConCourt Justice Bess Nkabinde had sat on already having already found there was a prima facie case for Mkhwebane to answer toforand a parliamentary committee having been established.

And the speaker and the DA – which was also involved in the case – have both since lodged applications for leave to appeal the high court’s ruling in the ConCourt, which are now being heard together.

The DA’s appeal bid centres on the high court’s findings in relation to a judge’s presence on the independent panel – which the party maintains is completely above board.

Budlender on Monday argued even if it were wrong, though, the retrospectivity of the court’s order to this effect should be limited, otherwise it would take the process involving Mkhwebane “back to square one”.

“We are in a world in which there was an independent panel appointed, there was a judge appointed to the panel, it delivered its report, the report has been relied on and it has been referred to the committee,” he said.

He further said Mkhwebane appeared to be trying to avoid accountability.

“It is not appropriate or permissible in light of the duty of accountability that rests on her and the principle of accountability that flows through the Constitution.

“This case is not about whether she committed misconduct or should be removed, but about whether the process should be allowed to take its course,” he said.

Budlender on Monday faced questions from the bench on the high court’s findings that a judge shouldn’t become “politically entangled” in the process, to which he emphasised that the independent panel’s task was simply to establish if there was a prima facie case and not to make a final determination.

Advocate Andrew Breitenbach SC, for the speaker, meanwhile honed in on the high court’s findings regarding the rules around legal representation for an office-bearer facing impeachment.

He argued barring full representation was aimed at ensuring the office-bearer in question was made to account personally.

But he, too, faced a grilling from the bench, with several of the justices raising concerns – importantly with the impact of this rule on Chapter Nine institution office-bearers who did not have legal backgrounds.

The case continues.