The separation of powers between the judiciary and legislature was thrust into the spotlight when the Western Cape High Court heard Public Protector Busisiwe Mkhwebane’s application to have rules on her removal declared unconstitutional.

Representing Mkhwebane, advocate Dali Mpofu argued before court that it was only the legislature that could hold an officer-bearer of a Chapter 9 institution accountable.

“Is it constitutionally permissible for the National Assembly to delegate some of that function to a judge, a member of judiciary? It is not that the National Assembly can outsource certain functions, so you can’t outsource your constitutional responsibility,” Mpofu said.

He was arguing over the rules of Parliament which provide for a judge to be a member of a panel to determine if the head of Chapter 9 institution has a prima facie case to answer.

Mpofu asked where National Assembly Speaker Thandi Modise obtained the power to appoint a judge who was nominated by a political party.

He said nobody could perform a function unless it was sourced in law.

“There is no provision in this Constitution to empower the Speaker to appoint a judge for any purpose.”

Mpofu said the parliamentary rules made it worse by providing that the appointment would be done in consultation with the Chief Justice.

“It does not make it better. It makes it worse. A member of the judiciary can’t play that role,” he said, adding that such a move puts the judiciary into disrepute.

Mpofu was arguing in the application brought by Mkhwebane to declare the rules for the removal of heads of Chapter Nine intuitions unconstitutional.

She also wants the court to determine the constitutionality of Modise’s conduct.

In addition, Mkhwebane wants the court to determine whether the rules ought properly to be interpreted so as to give retrospective application, and if not the conduct was in violation of the Constitution.

Mpofu said the rules for removal of Chapter Nine institutions provided for retrospective application.

“The law is clear that ’retrospectively’ can only be applied if it is clearly set out in a legal instrument. The rule of law says you can’t be punished for something that happened before the law existed,” he said.

Modise, the DA and President Cyril Ramaphosa are opposing the application set to be heard until Wednesday.
The ATM, the PAC and the UDM are supporting Mkhwebane’s application.

Corruption Watch and Council for the Advancement of the South African Constitution are amicus curiae – friends of the court
Mpofu said the rules allowed the officer-bearer the right to be assisted by a legal practitioner of her choice, provided he or she did not participate in the committee.

“This on its own is tantamount to denial of legal representation and is therefore unconstitutional and therefore constitutes unjustified limitation of right to legal representation.”

Mpofu said that had Mkhwebane been offered the opportunity to be heard, she would have pointed out blatant flaws such as the bias of the decision makers as well as the defective nature of the motion, insofar as it relied on the untenable retrospective application of the rules.

“These issues relate to both procedural fairness and irrationality.”

He said the rules did not make it mandatory for the Speaker to notify the incumbent of the head of Chapter Nine institution about the complaint motion and to hear his or her side of the story.

Advocate Muzi Sikhakhane, representing the ATM, said the parliamentary rules were by nature punitive.
“They seek to remove someone from constitutional duty,” Sikhakhane said.

He said the serious nature of the provision and rules required a right to be heard at the beginning at different stages.

“That did not happen. The rules do not pass constitutional muster,” Sikhakhane said.
He also said the rules did not indicate reasons or whether they should apply retrospectively.

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