Parliament is set to appeal last month’s Western Cape High Court ruling which declared certain sections of its rules for the removal of heads of Chapter 9 Institutions unconstitutional.
This follows the National Assembly’s Rules Committee meeting on Friday that deliberated on Public Protector Busisiwe Mkhwebane’s application that challenged the constitutionality of the rules adopted by the House last year.
However, it remains unclear whether the Section 194 Inquiry into Mkhwebane’s fitness to hold office would proceed as MPs wait for parliament’s legal services to advise them on the continuity of the inquiry. The inquiry is chaired by ANC MP Richard Dyantyi.
In July, the high 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 the public protector should face a parliamentary inquiry into her competency for office.
The second part is related to Mkhwebane’s right to legal representation at the Section 194 Inquiry stage of the process.
Most MPs on Friday were divided over the continuity of the inquiry while Parliament appealed the court’s ruling.
The Office of the Public Protector had called for the Section 194 Inquiry to be halted with immediate effect.
Mkhwebane’s spokesperson Oupa Segalwe said the judgment meant that the panel chaired by former ConCourt Justice Bess Nkabinde was “illegally appointed.”
“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,” Segalwe said in a statement.
“It is already clear that two of the most important findings of unconstitutionality relate to the denial of legal representation before a Section 194 Committee established in terms of section 194 of the Constitution as well as the unconstitutionality of the appointment of a judge to form part of an Independent Panel, which makes the trigger decision of the existence of a prima facie case.”