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Perplexed with Busisiwe Mkhwebane’s high court victory? You should be — here’s why


In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

An unusual event occurred last week — that serial loser of litigation before the courts, the Public Protector Busisiwe Mkhwebane, won in court. This column is a guide for the perplexed.

A casual reader of the judgment of Judge Elizabeth Baartman, writing for a Full Bench of the High Court in the Western Cape, may have thought that yet again the arguments of her counsel Dali Mpofu SC had led to another in a long, long line of defeats, but after a more careful reading, it is clear that she has won a major victory in her employment of Stalingrad tactics designed to ensure that she stays in her post until 2023 when her single term expires.

So what follows is a guide for the perplexed.

Given the tsunami of Mkhwebane’s legal defeats, it was obvious that a case for her removal, or expressed differently, the parliamentary attempt to protect the public from the Protector, would take place. Section 194 of the Constitution provides for the removal of heads of Chapter 9 institutions such as the Public Protector on grounds of incapacity, incompetence and misconduct. Section 194 then provides that a committee of the National Assembly must make the necessary finding followed by an adoption of a motion for removal by two thirds of the members of the National Assembly.

The gap in the Constitution is that no process is provided for how the committee is to go about its mandated task.

So on 3 December 2020, a process was finally adopted for this purpose. For the scope of this analysis, an important feature was the provision for an independent panel which may include an appointment of a judge by the Speaker of the National Assembly. The independent panel is tasked with providing a reasoned report, with recommendations on whether there is prima facie evidence of misconduct, incapacity or incompetence. The National Assembly then considers this report and decides whether the committee should proceed to make a determination to be placed before the National Assembly, which is the ultimate forum to determine the question of impeachment. The committee is mandated to ensure that the inquiry is conducted in a reasonable and procedurally fair manner.

The Public Protector, in keeping with the initial defensive strategy of General Vasily Chuikov at Stalingrad, raised 12 grounds for setting aside the procedures adopted by the National Assembly to determine her removal.

Two proved to be critical.

In the first place, an attack was launched on the provision that the affected party, in this case the Public Protector, has a right to be heard and to be assisted by a legal practitioner provided that the latter has no right of participation in the process. Here the Public Protector met with success in that the court held that, even though the Public Protector is technically qualified as a lawyer, the provision that she was not entitled to call upon a lawyer to assist her during the hearing was unreasonable and procedurally unfair.

Given the obsession in South Africa with the adversarial system of procedure, this finding is certainly one that may well be correct, although if the subcommittee followed an inquisitorial procedure the provision regarding the limited role of the legal representative would probably have been unassailable.

The finding that legal representation must be allowed to play an active role is not, however, where the Public Protector wins in that this would require a speedy amendment to the rules and the committee could commence its inquiry. However, Judge Baartman made another finding that gives the fight to the Public Protector on points. That concerns the independent panel which in this case was headed by retired Constitutional Court Justice Bess Nkabinde. Judge Baartman found “without reservation” that the presence of a judge on the panel was undesirable, itself an indication of the convoluted reasoning that was to follow, as if there is now a new legal category termed undesirable!

The learned judge found that the presence of a judge was undesirable because “the process is politically charged”. Surely if the process was politically charged and it appears only to be politically charged because the EFF and the RET want to make it so, a retired judge would assist in bringing impartiality to the initial process. Ironically, the non sequitur contained in this sentence is confirmed when the next sentence is read, namely that “at least 10 judges have been involved in orders involving cost orders against the Public Protector”.

That then is hardly the stuff of political controversy unless you take the line of the Public Protector, and recently Ace Magashule, that the judges who found against them are biased. And then to confirm the lack of a plausible legal basis for her finding, Judge Baartman says that there may be circumstances when the presence of a judge may be appropriate, but this was not such a case.

Either it is illegal per se or it is not.

Without even a mention of the judgment that sets out the framework for where judges should not tread, being Heath v RAF, the conclusion is reached that this appointment is in breach of the doctrine of separation of powers. The judgment that was cited by the court, NSPCA v Minister of Agriculture, concerned whether a statutory provision that requires a magistrate to decide applications for and the issue of animal training and exhibition licences is constitutional.

That this was found to be a case where someone who is not a magistrate could perform these tasks was clear. In Heath v RAF, a judge who not only investigated crime but then led the prosecution team was found to be in breach of the separation of powers is equally clear. Much was made in both the NSPCA and Van Rooyen cases cited by the court that many administrative tasks also may trench upon separation of powers. But in this case, what was required was a panel to exercise legal judgment and provide a report that would assist the National Assembly in the decision it, and not the panel, had to take as to whether to proceed to consider impeachment.

So the judgment does two things — first, it invokes the idea of political controversy as a stand-alone justification which would, on that logic, caution against employing a judge to head a commission of inquiry such as the Zondo Commission (what could be more politically charged?) or the role of Deputy Chief Justice Dikgang Moseneke to make recommendations about the holding of local government elections in October. Then without paying close analytical attention to NPSCA and none to Heath, save perhaps indirectly by way of the NPSCA judgment, the appointment of a panel to provide a report to the National Assembly is held to be in breach of the doctrine of separation of powers.

On the basis of this very debatable reasoning, the court, while correctly dismissing the laundry list of objections to the National Assembly process, decided to rewrite two key provisions of the rules of the National Assembly. And that is where the Public Protector won a significant victory in that she can now argue that the process must commence afresh with a new panel and that means the steps to decide upon her removal will doubtless not be able to progress until 2022, for even with an appeal to the SCA, the threat of removal is no longer imminent.

This judgment shows that Stalingrad tactics can work and further that a principle of some deference to Parliament needs a better jurisprudence, for after all, that too is part of the doctrine of separation of powers. DM


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