National Assembly speaker Thoko Didiza will not oppose Gauteng High Court judge Nana Makhubele’s urgent application to halt parliament’s consideration of the recommendation that she be impeached.
Last week Makhubele filed the urgent application to halt parliament’s consideration of the Judicial Service Commission (JSC) recommendation for her impeachment until the finalisation of a review application to set aside the commission’s gross misconduct finding against her.
The gross misconduct finding prompted parliament’s impeachment process.
The urgent application before the high court in Pretoria is against the National Assembly speaker, the National Assembly and parliament’s portfolio committee on justice and constitutional development committee chaired by MP Xola Nqola.
On Tuesday the legal team of Didiza filed a notice to abide by the court’s decision on the case. This means the speaker and the National Assembly will not oppose the application. On Monday the committee also filed a notice to abide by the court’s decision and will not oppose the application. This means Makhubele’s interdict application is an unopposed case.
Should Makhubele succeed in the urgent application, and the parliamentary process be halted pending the review application, this would delay MPs’ consideration of her application.
The fact that I will have no alternative remedy in an adverse vote from the National Assembly makes this matter urgent. Even if I were to succeed in the review application, the victory will be meaningless
— Judge Nana Makhubele
Makhubele argues if the National Assembly proceeds with the impeachment vote before the outcome of the review application, she will have no alternative relief to save her career.
“The continuation of the section 177 [removal of a judge] proceedings under circumstances where there is a pending review application will result in irreparable harm,” she argues. “The fact that I will have no alternative remedy in an adverse vote from the National Assembly makes this matter urgent. Even if I were to succeed in the review application, the victory will be meaningless.”
Business Day previously reported that last week the committee resolved to continue considering the recommendation of the JSC for Makhubele’s impeachment, despite the review case. This was because Makhubele, in the review, did not make a case for an interdict against the parliamentary process.
Parliamentary legal adviser Barbara Loots told MPs last week that if parliament impeaches Makhubele and she later wins the review, the impeachment decision would fall away. This would put President Cyril Ramaphosa in a legal dilemma if the review has not concluded and parliament votes to impeach her, as he then has to remove Makhubele when parliament passes a majority vote on the impeachment.
The constitution stipulates that a judge may be removed if the JSC finds the judge guilty of gross misconduct and thereafter the National Assembly calls for that judge to be removed with a supporting vote of at least two-thirds of its members. After a majority vote in parliament, the president must remove the judge.
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