Will Mkhwebane impeachment challenge end up in ConCourt?

The case raises constitutional issues and so has the potential at least to land up in the country’s apex court in the end

Public Protector Busisiwe Mkhwebane’s long-anticipated challenge to her impeachment process in parliament finally came before the Western Cape High Court this week.

But whichever way it goes, the case raises constitutional issues and so has the potential at least to land up in the country’s apex court in the end.

This means it could wind up dragging on beyond the end of Mkhwebane’s term in 2023, eating up state resources in the process.

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Constitutional law expert and director of Accountability Now Paul Hoffman said it was a fight worth finishing, though.

Hoffman on Thursday pointed out it could be wrapped up more quickly and that the courts ought to expedite the case and bring it to finality “as a matter of law”. Either way, it was an important battle.

“Anybody and everybody who wants to lead a Chapter 9 institution must know that parliament will exact accountability,” Hoffman said, adding the court outcome could also impact Mkhwebane’s severance package.

He also said parliament had a constitutional duty to “diligently and without delay” exercise oversight over these institutions.

Advocate Dali Mpofu, for Mkhwebane, this week argued the rules for the removal of Chapter 9 institution heads, which were only adopted three days before the motion to remove Mkhwebane was moved and have never been called into play before, unconstitutionally limited their rights to full legal representation.

He argued they could not, in any case, be applied retrospectively and the process was unfair because the public protector wasn’t given enough of a voice in it.

National Assembly Speaker Thandi Modise is the first respondent in the case and her counsel, advocate Andrew Breitenbach, on Tuesday was grilled by the bench on the issue of legal representation, but maintained it was “a matter of personal accounting”.

Mkhwebane’s supporters at Democracy in Action on Thursday argued the impeachment amounted to “sacrificing effectiveness, independence, dignity and constitutionality at the altar of a quick political fix”.