Johannesburg - The National Assembly has been granted permission to continue with the impeachment process against Public Protector Busisiwe Mkhwebane after the Constitutional Court ruled on Friday that the appointment of Judge Bessie Nkabinde as head of an independent panel probing her conduct was justifiable.
Justice Nonkosi Zoliswa Mhlantla made the ruling after National Assembly Speaker Nosiviwe Mapisa-Nqakula lodged an urgent appeal to the apex court against the ruling of the Western Cape High Court which effectively stalled the hearing against Mkhwebane.
The Western Cape High court had ordered that the rules be amended to allow legal representation for the head of a Chapter 9 institution -- such as the public protector -- when appearing before a Section 194 committee.
It also ruled that judges should not be on the independent panel which has to decide whether there is a prima facie case against a Chapter 9 head.
Mapisa-Nqakula, in her papers, argued that it was in the interest of justice that the appeal was heard by the Constitutional Court, as it dealt with constitutional matters, particularly the separation of powers.
She argued that judges may perform non-judicial functions and nothing prevented them from being appointed to the panel.
The ConCourt agreed with Mapisa-Nqakula, saying that the correct question was whether it was permissible, and not whether it was desirable to do so.
“Therefore, the high court erred as it asked the wrong question. The court considered whether the appointment of a judge to a panel to consider evidence and make a prima facie finding would be incompatible with judicial office,” Justice Mhlantla ruled.
“The court held that the separation of powers is not absolute saying it is apparent that the impartiality, independence and lack of bias of a judge places the judge in a perfect position to perform this function.
“The judge is appointed in consultation with the chief justice, which safeguards the separation of powers doctrine.”
Mapisa-Nqakula however lost her appeal against the granting of legal representation for Mkhwebane.
The court ruled that the hearing which was halted by the Western Cape high court, should continue.
Mkhwebane lost her cross appeal at the ConCourt and was ordered to pay the costs of the Democratic Alliance in the matter. The DA had appealed against the high court ruling on the appointment of Judge Nkabinde.
Mkhwebane welcomed the Constitutional Court’s dismissal of the appeal lodged by Mapisa-Nqakula against the judgement of the high court affirming the right of Chapter 9 heads to be represented by a legal representative of their choice in the event of impeachment proceedings, to ensure fairness and compliance with the constitution.
“The Public Protector is studying the rest of the judgment and will issue a statement on the way forward in due course,” Mkhwebane’s spokesperson Oupa Segalwe sai.
POLITICAL BUREAU