THE Western Cape High Court is expected to hear Public Protector advocate Busisiwe Mkhwebane’s latest application to stop Parliament’s enquiry into whether or not there are grounds for her removal from office.
The Western Cape High Court Judge President John Hlophe, who has been found guilty of gross misconduct, is expected to hear Mkhwebane’s court challenge against Parliament’s impeachment rules.
The hearing is scheduled to be heard together with a similar challenge by Democracy in Action.
Mkhwebane’s new application is challenging the validity of the new National Assembly and seeks a declaration that the rules are unlawful, unconstitutional, invalid and void.
Mkhwebane previously compared the rules to the “Sobukwe clause”, the apartheid-era legislation used to arbitrarily extend the imprisonment of PAC leader Robert Sobukwe and insisted they were aimed solely “at the removal of Mkhwebane”.
Democracy in Action is asking the court to consider the lawfulness of how Parliament gives expression to its Section 194 constitutional oversight mandate.
Section 194 of the Constitution gives Parliament the power to remove office bearers of Institutions Supporting Democracy.
These include the Public Protector and the Auditor General.
On 3 December 2019, the NA unanimously adopted its rules to operationalise Section 194 of the Constitution.
In May, National Assembly Speaker Thandi Modise filed supplementary heads of argument.
“These respond to certain written submissions in the Public Protector’s December 2020 Heads of Argument,” said Parliament’s spokesperson Moloto Mothapo.
“The National A Rules merely operationalise the grounds for removal of Chapter 9 office bearers and do not tamper with the grounds for their removal, as specified in Section 194 of the Constitution. The Speaker further argues that it was incorrect of Mkhwebane to draw comparisons between her office and judges.”
In October last year, the Western Cape Division of the High Court dismissed Part A of Mkhwebane’s application with costs.
The court said it was satisfied the balance of convenience favoured the NA proceeding with carrying out its constitutional function in terms of Section 194 of the Constitution and the NA Rules.
Last year in November the court turned down an appeal from the Public Protector on its October judgment.
In March this year the Constitutional Court dismissed the Public Protector’s application for direct leave to appeal the Western Cape High Court decision, as no case had been made out for such direct leave to appeal.
- Inside Politics
