And that means nothing but politics now stands in the way for the National Assembly’s Section 194 committee to resume its inquiry to impeach Public Protector Busisiwe Mkhwebane.

This is a crucial win for the national legislatures even as its stance on legal representation in such impeachment proceedings was dismissed in the unanimous ruling delivered by Judge Nonkosi Mhlantla.

Read the post-judgment summary here.

If the Constitutional Court had upheld the Western Cape high court’s July 2021 ban on a judge’s participation in this initial assessment, whether grounds for removal existed, this effectively would have scuppered the late February 2021 recommendation by such a panel that Mkhwebane had a case to answer.

“In the circumstances, and or the reasons contained in this report, we recommend that the charges of incompetence be referred to a committee of the Assembly as provided for in the NA (National Assembly) rules,” said the 116-page report by retired Constitutional Court Judge Bess Nkabinde and advocates Dumisa Ntsebeza and Johan de Waal, who had been appointed to the panel in late 2020.

“In the circumstances, and for the reasons contained in this report, we recommend that the charges of misconduct be referred to a committee of the Assembly as provided for in the NA rules.” 

On the back of the National Assembly’s adoption of these recommendations, the Section 194 inquiry committee was established — and got moving to represent every single political party represented in Parliament.

But MPs decided to suspend proceedings on the day the established Section 194 committee adopted its draft programme to wrap the impeachment inquiry in January 2022, after the Western Cape high court 29 July 2021 findings of unconstitutionality of two of the 17-steps in the impeachment rules, and Parliament decided to appeal.

On Friday the Constitutional Court unanimously found the lower court erred in declaring unconstitutional the participation of a judge in the initial assessment because it violated the separation of powers.

It did not breach this doctrine — and it was not beyond the judicial functions permitted for judges to serve in such a panel.

“…(T) he judge is appointed to the independent panel, not to make a binding decision, but to give advice on the subject of the removal of a Chapter Nine institution office-bearer… Moreover, it bears emphasis that the judge is but one of a three-person panel. She may thus well find herself in the minority in decisions on the recommendations to be made by the independent panel,” said Mhlantla. 

While the National Assembly won this crucial point after having been granted its request for direct access to the Constitutional Court, the national legislature was slapped down on legal representation during such removal from office proceedings.

“As the prolonged 17-step removal process envisages adequate safeguards, full legal representation must be included in this process,” the Constitutional Court ruled. 

When the National Assembly drafted these impeachment rules — they were unanimously adopted in the House in early December 2019 — discussions traversed the possibility of lawyers taking over parliamentary political and accountability processes. That push for personal accountability was also speckled throughout legal arguments before South Africa’s highest court on 8 November 2021.

But such was inadequate, the Constitutional Court found on Friday, particularly as not every head of a Chapter Nine institution established in the Constitution to support democracy was legally trained. These institutions include the auditor-general, South African Human Rights Commission, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and the Commission for Gender Equality.

But Mhlantla was crisp and clear that full legal representation did not mean dodging questions.

 “If there are factual disputes concerning the office-bearer’s conduct, she will need to give evidence and can be cross-examined by the committee,” ruled Mhlantla.

“Furthermore, the fact that the office-bearer is entitled to legal representation does not imply that the committee cannot ask the office-bearer directly to respond to certain questions, even if she is not at that time giving evidence under oath.”

Parliament would take heart from that.

“Speaker (Nosiviwe Mapisa-Nqakula) appreciates clarification and guidance provided by Constitutional Court in relation to the judgement of the high court, which removes any hurdle to the continuation of the process by the Section 194 committee…” tweeted Parliament spokesperson Moloto Mothapo on Friday afternoon.

“This judgment is a victory for the DA and our fight to restore independence in the Office of the Public Protector… The DA looks forward to make substantial contributions to the Inquiry and we trust that it will be a robust, comprehensive process in Parliament,” said a statement by DA Chief Whip Natasha Mazzone, who in early 2020 sponsored the motion for Mkhwebane’s removal from office.

Meanwhile, the Public Protector welcomed the Constitutional Court’s upholding of full legal representation as determined by the Western Cape high court in July 2021. 

“The Public Protector is studying the rest of the judgment and will issue a statement on the way forward in due course,” she said in a statement.

With the Constitutional Court, the highest legal instance in South Africa, having delivered judgement, the only option would be to apply for a rescission order on the points she lost like the validity of a judge’s participation in the initial assessment panel. 

Few if any prospects of success would exist in moving for a rescission order on the Constitutional Court’s dismissal of her cross-appeal that effectively reintroduced legal challenges to the parliamentary rules, like retrospectivity and rationality that were previously dismissed by the Western Cape high court in July 2021 and in a prior interdict application that was dismissed by the Western Cape High Court in October 2020.

A possible rescission application would continue the legal wrangling that’s been on the go since February 202o in the wake of political wrangling since 2017, when the DA brought its first motion to have Mkhwebane removed from office.

The Public Protector’s non-renewable seven-year term runs out in mid-October 2023.

Friday’s Constitutional Court judgement has cleared the way for the Section 194 committee impeachment inquiry to resume. What happens now is up to the National Assembly and its MPs. DM

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