Although dismissing her bid to have the National Assembly's rules for removing a Chapter Nine Institution head declared unconstitutional, the Western Cape High Court decided to rewrite some of the rules, and in the process opened the door for Public Protector Busisiwe Mkhwebane to demand the inquiry into her fitness to hold office be halted with immediate effect.

She quickly made the call last night when her spokesperson Oupa Segalwe said the ruling meant that the independent panel formed to assess whether Mkhwebane had a case to answer, which was chaired by Justice Bess Nkabinde, was illegally appointed.

‘It follows therefore that the present process must be halted with immediate effect,’ Segalwe said.

He also said continuing with the inquiry would constitute an attack on the authority of the courts, the rule of law and the constitutional rights of Mkhwebane.

‘A call is accordingly made to the National Assembly to do the right thing and allow for the inevitable process of amending the rules before their lawful implementation. The National Assembly should take the opportunity to rectify other weaknesses identified and criticised by the court, including those which may not necessarily have been declared unconstitutional at this stage,’ Segalwe added.

In what a Daily Maverick report describes as an unprecedented move, the court rewrote two parts of the parliamentary impeachment rules, even though overall the rules were deemed valid.

It says the impact of the judgment could extend well beyond Mkhwebane’s impeachment inquiry, noting that effectively the door has been opened to the involvement of lawyers, instead of only the public office holders who are legally and constitutionally accountable to Parliament.

It has not happened before that judges rewrote parliamentary rules or determined proceedings.

The courts have always given Parliament time to fix its rules. That’s because Section 57 of the Constitution states that Parliament ‘may determine and control its internal arrangements, proceedings and procedures and make rules and orders concerning its business…’

The DM says the full Bench led by Judge Elizabeth Baartman deleted ‘provided that the legal practitioner or other expert may not participate in the committee’ from Parliament’s Rule 129AD, leaving it to state that the Section 194 impeachment inquiry ‘must afford the holder of a public office the right to be heard in his or her defence and be assisted by a legal practitioner or other expert of his or her choice’.

This, says the report, potentially opens the door to lawyers, or other experts, speaking to legislators on behalf of a public office bearer, be it a Minister, Public Protector or a military general.

This would be unprecedented.

Mkhwebane’s call to halt the inquiry is based on the judgment’s other rule rewrite – that a retired judge may not be part of the initial independent panel to assess if there was a case to be answered.

Retired Constitutional Court Judge Bess Nkabinde headed the independent panel – that included Advocates Dumisa Ntsebeza and Johan de Waal – which recommended there were grounds for the National Assembly to proceed to a Section 194 inquiry on grounds of incompetence and misconduct.

The High Court judgment found that while there may be a place for a judge in a panel, this was not one of those instances.

‘As of late, the judiciary has come under attack for being partisan to political parties of factions. Judicial involvement in this process feeds into that narrative. I do not suggest that it is time for judicial officers to retire to ivory towers. I do, however, suggest that the judiciary would be well advised to steer clear of a process so politically charged in which its involvement adds no value other than expediency.’

And so, notes the DM, the judges removed ‘which may include a judge’ from Rule 129E to rewrite it thus, ‘The panel consists of three fit and proper, competent, experienced and respected South Africans who collectively possess the necessary legal competence and experience’.

Mkhwebane argues that because a retired judge – Nkabinde – was part of the panel that recommended Parliament should proceed with an impeachment inquiry, the entire process is flawed.

This argument ignores the fact that the House had approved the Section 194 inquiry with a vote of 275 for, 40 against and one abstention.

Full Daily Maverick report