Parliament says it is consulting its legal team following Wednesday’s court judgment, which declared certain sections of its rules for the removal of heads of Chapter 9 Institutions to be unconstitutional.
This followed Public Protector Busisiwe Mkhwebane’s application before the Western Cape High Court challenging the constitutionality of the rules adopted by the National Assembly. Speaker Thandi Modise had opposed each of the 14 grounds Mkhwebane made to challenge the new rules.
The court ruled in favour of Mkhwebane’s application on two grounds. This was related to Parliament’s appointment of a retired Constitutional Court (ConCourt) justice as a member of an independent panel that investigated whether Mkhwebane should face a parliamentary inquiry into her competency for office.
The second part is related to the public protector’s right to legal representation at the Section 194 Inquiry stage of the process. The committee is known as the Section 194 Inquiry because it deals with the removal of a head of Chapter 9 Institutions.
Parliament’s spokesperson Moloto Mothapo said Modise noted the judgment and their lawyers were studying it fully.
He said when they were done, Parliament would make a determination on the implications of the judgment on its independence and the manner in which it determines its internal processes.
“The manner in which the Section 194 committee proceeds will be based on legal advice,” Mothapo said in a statement.
However, the Office of the Public Protector called for the Section 194 Inquiry to be halted with immediate effect.
“To continue on the basis of the old unamended and partly unconstitutional rules, as if nothing has happened, would constitute an attack on the authority of the courts, the rule of law and the constitutional rights of the public protector,” it said in a statement.
The inquiry held its second meeting on Wednesday, where it heard from parliament’s legal adviser Fatima Ebrahim who outlined the rules that would underpin the work of the committee.
Ebrahim told MPs their responsibility was not to prove the guilt or innocence of Mkhwebane, but whether there were grounds for her removal on the basis of fact and law.
“This is instead ultimately an oversight process. Indeed, it does have a political element in that it will accumulate in a decision by the National Assembly, which of course consists of members of political parties,” she said.
The final report of the committee was expected to be finalised by 13 January 2022.