Dali Mpofu. Picture: VELI NHLAPO
Dali Mpofu. Picture: VELI NHLAPO

The impeachment rules formulated by parliament were broader than what was allowed by the constitution, introducing new grounds for impeaching the public protector “through the back door”, the Western Cape High Court heard on Monday.

The court was hearing public protector Busisiwe Mkhwebane’s challenge to the constitutionality of parliament’s new impeachment rules and to the impeachment process she is facing.

The DA brought a motion for her impeachment on a number of grounds of misconduct and capacity, including findings by the Constitutional Court that she had been dishonest and acted in bad faith in her litigation. After an independent panel found she did have a case to answer on the motion, parliament voted for an impeachment inquiry.

But Mkhwebane’s counsel, Dali Mpofu SC, said the rules and the process followed in her case so far were unconstitutional on a number of grounds — 12 in total.

He said section 194 of the constitution allowed for the impeachment of the head of a Chapter 9 institution only — “underline only” — for misconduct, incapacity or incompetence.

“Words are not just put there for decoration ... every word is there for a reason,” said Mpofu.

While the constitution referred to only misconduct, incapacity or incompetence, the rules had gone broader than ordinary misconduct by including in the definition the idea of “gross negligence”, he said.

Then, when it came to incapacity, the rules included in the definition both permanent and temporary incapacity.

“All of a sudden we now have a new impeachable offence called temporary incapacity.” Mpofu said that was something the drafters of the constitution did not envisage.

Mpofu also argued that because the rules barred Mkhwebane’s lawyers from fully participating in the impeachment committee, that was a limitation of her right to full legal representation.

He said when it came to the impeachment of judges and the president, lawyers were allowed to fully participate. If parliament wanted to limit Mkhwebane’s right to full legal representation, it had to justify this and had not done so sufficiently. 

Mpofu also said the rules did not clearly state that they applied retrospectively or to conduct that happened before the rules came into force. He said if the rules did not clearly say so, then the general principle was that they would not be retrospective — because “you cannot be punished for something that happened before that law existed”.

Responding to a question from the bench, Mpofu agreed that section 194 of the constitution, which provides for the impeachment of the public protector, had always been there. But he said the Constitutional Court had previously found that, when it came to the impeachment of the president, if there were no rules in place, there could be no impeachment. 

Similarly, when it came to section 194, “it was always there, but it was dormant, for lack of a better word”.

If parliament wanted the rules to be retrospective, it needed to amend the rules to say so, said Mpofu. 

The case was heard by judges Elizabeth Baartman, Mokgoatji Dolamo and Lister Nuku. On Tuesday the court will hear arguments for the speaker and the DA.

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