Some months ago, the Constitutional Court set aside the majority of an ill-considered order granted to the Public Protector relating to the required steps for her removal from office in terms of s194 of the Constitution. However, it left intact that part of the order that granted her the right to legal representation at the mandated hearing.

Roll on six months and the implications of this right which was granted in unqualified terms are now being evidenced in their harsh reality. At the time of writing, the committee which in terms of rule 129AA of Parliament is constituted to inquire into whether impeachment due to misconduct, incapacity or incompetence is justified, has heard but two of the 24 witnesses slated to provide testimony.

Mr Dali Mpofu SC has suggested that the work of the committee will extend way beyond September (presumably of this year!). Such is the nature of an adversarial process that allows interminable cross-examination.

Given that the President enjoys a right to legal representation in the event of removal from office and that judges enjoy the same right before a Judicial Conduct Tribunal, the Constitutional Court was doubtless correct to grant the Public Protector the same right. But as the court noted, the committee has the right to cross-examine the office bearer (para47) and further that its obligation is to hold a reasonable and fair procedure. That finding is based on Rule 129AA of the National Assembly.

Nothing is said about an adversarial procedure so that only a trial meets the test of fairness. There is no requirement that an inquisitorial process would not pass constitutional muster whereby the committee inquires into the fitness for office and where the legal representative can safeguard the rights of the incumbent office bearer. Indeed the wording of the rule which refers to an inquiry supports this view.

Full-scale trial

Instead, the committee, which is not a court, is now running a full-scale trial with oral evidence, cross-examination and the right of the Public Protector to answer in writing. Mr Mpofu has taken great exception to the suggestion that what is going to be a drawn-out process is now Stalingrad 3, following the precedent of S v Zuma and the review route taken by Judge President John Hlophe. Yet it was he who referred to the length of time taken by the Zondo commission to complete its task which provides compelling warning of the length of time this inquiry will still take to completion.

The model now employed by the committee has triggered the demand that President Ramaphosa is called to testify. On what? It cannot be about the case of alleged misconduct or incompetence in that it is the task for the committee to make a determination based on the record of the Public Protector.

It can only be to relitigate the issue of the CR17 campaign on which the highest court has already spoken definitively. And it would doubtless afford an opportunity for Mr Malema to push his agenda against the President.

None of this is relevant to the task before the committee, but once legal representation was coupled to the model of a trial, a runaway train had been put into motion.

The key question is why the interminable cases in which the courts, including the highest court of the land, have made significant and deeply disturbing findings against the Public Protector have to be re-litigated. The committee is not a High Court of Parliament; hence it is not an appellate court sitting above the Constitutional Court.

Thus the findings of the various courts surely constitute the basis for the charges against the Public Protector. The committee needs to consider whether these findings taken together constitute grounds for a finding that justifies removal.

In the case of one witness, Johann van Loggerenberg, his mental health condition that he has never denied, is raised; so much for respecting the dignity of a witness whose testimony is to the effect that the Public Protector made findings against him and other members of SARS without ever granting them a hearing.

Either this testimony and the consequent implications are correct or they are factually wrong. Demeaning a witness has no evidential value here save to intimidate witnesses who may wish otherwise to testify. Many of the questions put to Van Loggerenberg were based on reports which were later retracted by the authors or found by courts to be based on imagination rather than fact. 

Regrettably, the manner in which this hearing is unfolding is illustrative of a problem endemic to contemporary South Africa — the use of law, particularly procedure, to mount a war against the law. A core constitutional purpose was to introduce a principle of justification for the exercise of power.

A number of high-profile cases have revealed the impossibility of realising this ambition. Appeal after appeal and review after review regardless of the legal merits, a rescission application of a dismissal of a previous rescission application based on the same essential facts, ensuring that hearings continue interminably, are all now standard legal tools.

The legal profession needs to engage in earnest introspection. It is obvious that any accused or a person who may lose their office are entitled to a vigorous legal defence. But here is the question for debate: when is the line crossed and the effect or purport of legal conduct is the destruction of the integrity of the legal system?

It is perhaps ironic that some members of the parliamentary committee and the chair are trying to control the proceedings far better than many courts. The judiciary is not immune from the need for its own reflection on this problem. DM