The appointment of an independent panel to consider the presence of prima facie evidence against public protector Busisiwe Mkhwehabe did not see parliament outsource its authority, but rather evidenced care to ensure that the decision to institute an inquiry into her removal is sound, the Western Cape high court heard on Tuesday.
”It is a misconception that there is somehow a delegation of power,” advocate Andrew Breitenbach, for speaker Thandi Modise, argued in Mkhwebane’s application to have the rules parliament drafted to govern the process declared invalid and unconstitutional.
He said the assembly was not ultimately bound by the recommendation of the panel; hence, its appointment “does not involve passing the buck or failure to exercise its duty”.
“The assembly must consider those recommendations and decide for itself whether or not a section 194 inquiry be proceeded with,” he said.
Judge Lister Nuku asked Breitenbach what, then, the purpose of having the panel included in the rules was if it “has no function at all”.
Breitenbach submitted that the panel provided a “sifting mechanism”, to weigh the evidence of the person who tabled a motion for the public protector’s removal, before the assembly took the serious step of constituting a committee to consider her impeachment in terms of section 194 of the constitution.
But Nuku asked why this was needed when the drafters of the constitution plainly believed that the assembly was able to determine whether there had been an infringement of the duties of the public protector.
“Now why should that very same body that is entrusted with such serious powers decide to delegate it to a body that is not answerable in terms of the constitution?” he asked.
Breitenbach said the requirement for a pre-investigation was set by the 2018 ruling of Justice Chris Jafta in the Economic Freedom Fighters’ Constitutional Court case about parliament’s duty to hold then president Jacob Zuma to account after the court’s Nkandla judgment.
“What has been done here is a careful sifting mechanism, a double sifting mechanism,” he said, adding that this was important because section 194 (3)(a) gave the president the power to suspend the public protector from office when the committee commenced its work.
“That is why care has been taken by the assembly to ensure that it is properly advised before it takes a decision that a committee be established. If the court were to hold against the assembly that it acts carefully and in an informed manner, that, with respect, would be incorrect.”
But Judge Elizabeth Baartman raised a further concern that nominating a judge to head the three-person panel placed undue pressure on the judiciary at a time when it is routinely accused of political bias.
“Bear in mind that the judiciary is under attack from all quarters … Do you really want a judge up front in this climate?” Baartman asked.
Breitenbach said the drafters of the rules had created a safeguard here by allowing the speaker to consult with the chief justice, who would be mindful of the risk.
He responded to the argument, raised at length by Mkhwebane’s counsel, advocate Dali Mpofu, that nominating a judge to head the panel violated the principle of separation of powers, by saying the South Africa model was not one of absolute separation and, furthermore, justice Bess Nkabinde, who headed the panel, was retired.
Mpofu had argued on Monday that the rules guiding the inquiry into the removal of a public protector also violated the audi alteram partem rule by not obliging the speaker to notify her when a motion for her removal is lodged, and failing to give her a hearing without delay after the appointment of the panel to allow her to refute the grounds for removal. This was in breach of procedural fairness in a matter that was intrinsically punitive, in that it concerns her removal from office.
The speaker contends that the new rules do not qualify as administrative action subject to section 33 of the constitution, and that the applicable principle is one of procedural rationality and not fairness. She argues that Mkhwebane has two, sufficiently early opportunities to make representations, firstly to the independent panel, and secondly to the committee.
And she rejects Mkwebane’s argument that she should have been consulted before the rules were drafted because she is an employee of parliament and these altered her terms of employment.
“The main difficulty with this contention is that the public protector is not employed by anyone, be it the National Assembly or anyone else,” Breitenbach said, adding that she is independent but subject to the constitution and accountable to the legislature.
He rejected Mpofu’s contention that the rules went beyond the bounds of the constitution by qualifying the grounds for impeachment of the public protector. If anything, adding the adjectives “gross” to the requirement of misconduct, and “sustained” to incompetence, made it more difficult, not easier, to impeach.
The hearing dwelt on Mpofu’s argument that item 129AD of the rules is irrational, in that it denies the public protector full legal representation when appearing before the section 194 committee constituted by parliament. The rule stipulates that she may be assisted by a legal practitioner of her choice, but that the person “may not participate in the committee”.
Breitenbach argued that the rules required the public protector to participate personally, for the reason that the constitution holds her accountable to parliament.
Here Baartman noted that, although she is a lawyer, Mkhwebane may not be best placed to handle cross-examination of witnesses in an inquiry in which she is the accused.
In response, Breitenbach pleaded that legislators wished to avoid a situation, seen in the impeachment hearings of two US presidents, in which the voice of the accused is supplanted by that of their legal representatives.
Mkhwebane is seeking an order declaring the rules unlawful, unconstitutional, invalid, null and void. Alternatively, she wants the court to declare that the rules, adopted on 3 December 2019, are not retrospective and, therefore, do not apply to her actions before that date.
The National Assembly in March adopted the panel’s report, which found prima facie evidence of misconduct and incompetence on Mkwebane’s part, including instances of overreach, repeated legal errors and a lack of procedural fairness raised by the courts in a number of scathing review judgments on her findings.
It said the instances of incompetence stretched over a period of at least three years, starting in 2017. These included her findings on the Bankop-Absa saga and the Vrede dairy project state-capture scandal.
Breitenbach conceded that the rules were silent on retrospectivity, but said the court must apply the reasoning that retrospective application must be intended in instances, such as this, in which the alternative would be absurd. But further, he said, the National Assembly’s power to remove the public protector derived from the constitution, not the rules, which are merely intended to regulate the process
Mkhwebane is the first public protector to risk impeachment, which requires a two-thirds majority vote in the National Assembly, and the prospect has divided the governing party. She is seeking a personal and punitive cost order against Modise.
The hearing continues.