The rules of Parliament prevent an impeachment process from going ahead against Public Protector Busisiwe Mkhwebane, according to her counsel, Dali Mpofu SC, in written argument to the Western Cape High Court. 

Mkhwebane faces impeachment on a number of grounds of misconduct and incompetence, including findings of dishonesty and acting in bad faith by the Constitutional Court, reports Business Day. 

Her challenge to the constitutionality of Parliament’s impeachment rules and impeachment process against will be heard by Judges Elizabeth Baartman, Mokgoatji Dolamo and Lister Nuku from today. Nuku was allocated to the case after Western Cape Judge President John Hlophe, who had originally allocated himself to hear the matter, recused himself after a letter from the DA, which is a party to the case.

Mkhwebane had tried to interdict the impeachment process from going ahead but failed in the Western Cape High Court in November.

In February an independent panel chaired by retired Constitutional Court Judge Bess Nkabinde found that, on a prima facie basis, she did have a case to answer on a number of grounds of misconduct and incompetence.

In March the National Assembly decided an impeachment inquiry was warranted.

Mkhwebane wants the High Court to declare that the rules under which the process is being conducted are unconstitutional.

She is challenging the rules and the process on a number of grounds – 12 in all, says Mpofu, according to the Business Day report. 

One of Mkhwebane’s grounds is that the rules should not be applied retrospectively, or applied to conduct that happened before their enactment.

‘The presumption against retrospectivity is a manifestation of the rule of law,’ says Mpofu, quoting case law that says conduct should ordinarily be assessed under the law that existed at the time. He says that the Speaker and the DA have not rebutted this presumption.

But Modise’s counsel, Andrew Breitenbach SC, says it was always the law that the Public Protector could be impeached by Parliament for misconduct and it would be ‘absurd’ for the new rules not to apply.

It would mean that no misconduct ‘however grave’ before the rules being adopted could lead to an impeachment. Even if the head of a Chapter Nine institution admitted to committing a serious crime, they could not be impeached if it happened before the rule, he said.

Another argument by Mkhwebane is that the rules are unconstitutional because they do not allow Mkhwebane to have a lawyer speak on her behalf during the parliamentary inquiry.

Breitenbach says Mkhwebane is, under the rules, entitled to be assisted by a lawyer but not to have a lawyer speaking on her behalf, as the Constitution requires that ‘she is accountable personally’. 

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