The committee constituted to inquire into whether the impeachment of suspended Public Protector Busisiwe Mkhwebane is justified has heard just two of the 24 witnesses slated to provide testimony. Advocate Dali Mpofu SC has suggested that the work of the committee will extend way beyond September.

‘Such is the nature of an adversarial process that allows interminable cross-examination,’ says the anonymous Professor Balthazar, adding Mpofu has taken ‘great exception’ to the suggestion that what is going to be a drawn-out process is now Stalingrad three, following the precedent of State v Zuma and the review route taken by Judge President John Hlophe.

‘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 and further that its obligation is to hold a reasonable and fair procedure.’

Writing on the Daily Maverick site, Balthazar notes 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.’

He adds the committee is now running a full-scale trial with oral evidence, cross-examination and the right of the Public Protector to answer in writing.

Balthazar says once legal representation was coupled to the model of a trial, ‘a runaway train had been put into motion’.

He adds the manner in which this hearing is unfolding illustrates a problem in contemporary SA – ‘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’.

He says ‘standard legal tools’ now include appeal after appeal and review after review regardless of the legal merits; and rescission applications of a dismissal of a previous rescission application based on the same essential facts.

‘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.’

Full analysis on the Daily Maverick site