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Public protector Busisiwe Mkhwebane lost her legal opportunity to stop Parliament’s investigation into her removal. The Western Cape Superior Court’s Friday ruling found that she had not shown irreparable harm from such proceedings and instead upheld the public interest and constitutional responsibilities of Parliament.
Western Cape Superior Court Judge Vincent Saldanha firmly dismissed Public Protector Busisiwe Mkhwebane’s claim for irreparable harm, partiality and prejudice should the parliamentary investigation of deportation under Section 194 of the Constitution be carried out. It also dismissed as unfounded the claims of bias and bad faith of the Public Protector by the president of the National Assembly Thandi Modise and the motivator of the deportation process, the district attorney.
Emphasizing the public interest, Saldanha in an 89-page sentence said:
“Furthermore, it is not only in the public interest, but the considerations of this court of no uProperly meddle with the National Assembly which is constitutionally mandated to hold the applicant (Mkhwenane) accountable. This function of the National Assembly is primarily and constitutionally in the public interest. “
Dismissing the request for an injunction, the judge said that he had made an error of discretion when rejecting the request of the Public Defender “given the severity of the charges that had been preferred against him and that have been based on scathing findings of no one else higher than the Constitutional Court. in terms of their conduct, their honesty and research methodology ”.
This is a reference to the motion of complaint in support of the deportation investigation against Mkhwebane in which the district attorney had quoted a series of scathing comments from the judges about the Public Protector’s conduct. Mkhwebane is on the public record, saying this was not unusual as, as a judge, his reports and corrective actions could be reviewed.
“… (T) here there is a serious damage to the public interest added to the separation of powers that damages the National Assembly if the process is not carried out,” says the sentence. The impeachment of a head of a Chapter Nine institution established in the Constitution to support democracy cannot be taken lightly.
Parliament’s impeachment inquiry, a 17-step process according to rules unanimously approved by the House in early December 2019, may eventually result in a political decision by vote in the National Assembly. Section 194 of the Constitution requires a two-thirds majority in the House for the removal of the Public Protector and the Auditor General.
Indeed, Friday’s judgment has confirmed the arguments of Parliament during the hearing in mid-August said that since the national legislature, given its role in the selection of the Public Protector, also had a say in any removal from office. That was part of the constitutional function of the National Assembly, or the “ultimate accountability mechanism,” as the Western Cape High Court was then told.
Parliament’s impeachment inquiry into the public protector ‘the ultimate accountability mechanism, and in the public interest’
Mkhwebane’s defender, Dali Mpofu, had argued that it was all revenge and alleged prejudice and bad faith. But the judges were unimpressed by the lawyer who described the parliamentary removal process as similar to the Sobukwe Clause: the May law of the apartheid legislature. 1963 General Law Amendment Act extending annually the solitary confinement of Pan Africanist Congress (PAC) leader Robert Sobukwe on Robben Island until May 1969. Even if Mpofu Later he changed tactics to argue that it was the DA, not Parliament.
Judge not impressed by DA ‘vendetta’ lawsuit against public protector
On Friday, Saldanha, in his concluding remarks, noted the importance of the public interest and the need to live up to the values and aspirations of the Constitution. Like courts that are not immune from public scrutiny, neither are public office holders. While the public protector can be criticized, it was important that this was not seen as undermining her office and her constitutional powers.
Calling attention to the oath of office of parliamentarians who swear allegiance to the Constitution, Saldanha said:
“While ‘Justice is blind’, the eyes of the court remain wide open and so do its doors to ensure that a process as profound, unprecedented and solemn as that of an impeachment in terms of section 194 of a holder or holder of an office The sacred institution of Chapter Nine is not reduced to a platform for gratuitous defamation or illegal action against any person.
“The public also expects the President of the National Assembly to guarantee and maintain the credibility and respectability of the entire process.”
No punitive cost order was issued against Mkhwebane, although he was ordered to pay legal costs for all parties.
The ruling is a significant endorsement of Parliament’s constitutional responsibility and its status as the legislative sphere of the state.
On Thursday it emerged that the deportation investigation was ongoing. The independent panel considering whether a case should be answered had to be reconstituted after the first set of nominees declined over potential conflict or other.
“We had to look at all the candidates and make sure no candidate is used to discredit any decision the panel makes,” Modise told the scheduling committee Thursday.
Investigation to remove Public Protector to move forward, while Mkhwebane complains of being ‘ignored’
The names of that panel are now before the speaker, who must announce the panel and its start date. It is the third of 17 steps if you come to a removal investigation under the rule “Dismissal of officials in institutions that support constitutional democracy ”.
If the panel decides there is no case, the removal investigation ends there. If recommended, Mkhwebane faces an elimination committee, the next 14 steps unfold, much of it in public.DM
