Speaker vs Public Protector: ConCourt reserves judgment in application for leave to appeal

• Judgment has been reserved in the Speaker and DA's application for leave to direct appeal to the Constitutional Court in the Public Protector case.
• The Speaker and DA wants a High Court order which changed two of the rules for the removal of a Chapter 9 head, set aside.
• The impeachment process has been halted pending the legal proceedings.  

Judgment has been reserved in the National Assembly Speaker and DA's application for direct appeal to the Constitutional Court in the long court battle with Public Protector Busisiwe Mkhwebane.

Mkhwebane also brought an application for a conditional cross-appeal, if the apex court grants the Speaker and DA leave to appeal.  

A Western Cape High Court ruling in July put the brakes on the National Assembly's impeachment of Mkhwebane, which was in its infancy.

While the full Bench did not declare the rules for the removal of a Chapter 9 head, such as the Public Protector, unconstitutional as a whole, it found fault with two of the rules.

The court ordered that the rules be amended to allow legal representation for a Chapter 9 head 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.

READ | Acting speaker, DA challenge ruling on Chapter 9 head impeachment

It was particularly on the latter rule that Advocate Dali Mpofu, SC, for Mkhwebane dwelled on during Monday's arguments in the virtual hearing of the Constitutional Court.

The independent panel part of the process has already taken place. The panel, who recommended that the National Assembly impeach Mkhwebane, was chaired by retired judge Justice Bess Nkabinde.

Mpofu argued that allowing the appointment of a judge on the panel which should determine whether there is a prima facie case against a Chapter 9 head, is "rotten from conception".

He says the judges are nominated by political parties and the Speaker then decides in a "dark room" which judge to appoint to the panel.

Mpofu said:

If the Constitutional Court were to judge that the rule allowing judges to be appointed to the panel is unlawful, the whole process would have to be started afresh.

Speaker Nosiviwe Mapisa-Nqakula, in her papers, argues that it is in the interest of justice that the appeal is heard by the Constitutional Court, as it deals with constitutional matters, particularly the separation of powers.

She argued that judges may perform non-judicial functions and that nothing prevents them from being appointed to the panel.

She also argued that appointing a judge with consultation with the Chief Justice protects judicial independence.

READ MORE | Court offers some relief for Mkhwebane in her failed bid to have impeachment rules declared unconstitutional

The DA only challenges the order about the appointment of a judge to the panel, arguing it doesn't breach the separation of powers and doesn't threaten judicial independence.

Mpofu argued that nothing gives the Speaker the power to appoint judges. He further argued that if a judge is nominated by a particular party, that judge will be seen as that party's judge.

Advocate Steven Budlender, SC, for the DA, said no, "... well-informed, reasonable person", would come to that conclusion.

Mkhwebane argues that the Speaker and DA didn't establish grounds for direct appeal and that the matter is not urgent, as Parliament halted the impeachment process pending the legal processes.

Budlender said this is primarily a case about accountability. He said Mkhwebane isn't trying to be acquitted, but to avoid facing accountability. He said this relates to urgency. He also said it is without merit that the case should be referred to the Supreme Court of Appeal, where it will be until the end of her term.

Mkhwebane's term ends mid-October 2023.  

Mpofu said accusations that Mkhwebane wanted to delay the investigation into her are "scurrilous".

While Mapisa-Nqakula isn't asking for a cost order, as both Parliament and the Public Protector are funded by the state, Mkhwebane is asking for a personal cost order against former speaker Thandi Modise.

"The conduct here is not the conduct of an impartial speaker," Mpofu said of Modise.