The speaker of parliament and the DA have acknowledged that the recent high court judgment on parliament's impeachment rules was a significant blow to the impeachment process against public protector Busisiwe Mkhwebane.
If allowed to stand, it "would force the National Assembly to start the process of holding [Mkhwebane] accountable from scratch", said the DA in its appeal application to the Constitutional Court filed on Thursday. Acting speaker Lechesa Tsenoli said he would be recommending that until the appeal journey is finalised, the whole impeachment process should be put on ice. The speaker's application was filed in the Constitutional Court on Wednesday.
Impeachment, if it is going to happen, is not going to happen soon. How long it takes will depend on the attitude of the Constitutional Court.
Mkhwebane may have succeeded in only two of her 12 constitutional attacks on the rules, but the blow was crippling: the effect of the high court judgment was to render invalid a huge chunk of the impeachment process so far, the DA and the speaker agreed.
They have both approached the Constitutional Court urgently and directly (asking to leapfrog over the Supreme Court of Appeal) seeking to overturn the court's unconstitutionality orders - partially, in the DA's case - or at the very least get an order that would make the effect of the judgment forward-looking only; and so not apply to what has already happened in respect of Mkhwebane.
The judgment of the Western Cape High Court in July found that the recently adopted rules for the impeachment of the heads of chapter 9 institutions were unconstitutional in two respects.
First, in that their lawyers are not allowed to participate when an inquiry is being conducted by a parliamentary committee; and secondly because the rules allow for judges to be included in an independent panel that conducts a preliminary assessment, before the parliamentary committee process gets under way, into whether there is a prima facie case of misconduct, incompetence or incapacity.
The high court said the fact that judges could be included on the independent panel violated the separation of powers. But the judgment did not address what was to be done about the fact that, in this case, there had already been an independent panel, chaired by retired Constitutional Court justice Bess Nkabinde. The panel found that Mkhwebane had a case to answer for misconduct and incompetence.
In his appeal affidavit, Tsenoli said the effect of the court's order was to invalidate the appointment of Nkabinde and the job done by the panel, including its report; and "any and all steps taken by the National Assembly and its office-bearers pursuant to the delivery of the independent panel's report". This included the decision for a committee to conduct an impeachment inquiry and the speaker's decision on its composition.
Tsenoli said it would be "inimical" to parliament's constitutional duty to press ahead with an impeachment process when, if the high court order were to be confirmed on appeal, it would "invalidate everything . from the date when Justice Nkabinde was appointed".
Likewise with the second finding of unconstitutionality by the high court, he said. Though the committee stage has yet to begin, if it did get under way under the pre-judgment rules and then the judgment was upheld, the proceedings would be invalidated.
The removal motion was lodged as far back as February 2020, said the DA. "Yet the merits of the removal motion have not even been heard (let alone determined) by the National Assembly committee envisaged by the rules. Still less has the matter been dealt with by the National Assembly itself," said the DA's attorney, Elzanne Jonker, in the DA's affidavit to the ConCourt.
The speaker argues that the high court got the law wrong on both its unconstitutionality findings. The DA is appealing only one of the unconstitutionality orders - arguing that there is no breach of the separation of powers if a judge is allowed to form part of the independent panel.
Both appeal applications have it that, even if the ConCourt finds the high court got it right on the inclusion of judges, its order should not be retrospective.
Even if the court were to agree that the rules are constitutionally defective, the process that has happened so far is untainted, said Tsenoli. Jonker said there was no suggestion that the appointment of Nkabinde was party-political or that her integrity or that of the judiciary was impugned.
"On the other hand, the interests of society favour moving forward . It is a matter of the utmost public importance that the suitability of a public protector who has been repeatedly rebuked by our courts is swiftly and finally resolved," she said.
If the ConCourt does not accept a direct appeal, the speaker has also conditionally applied to appeal to the Supreme Court of Appeal.
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