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Mkhwebane’s impeachment trial resumes next week

Parliament is expected to resume the impeachment trial against Public Protector (PP) Busisiwe Mkhwebane next Tuesday.

The Constitutional Court ruled earlier this month that the house can continue the proceedings in a reserved verdict in November last year

Earlier National Assembly Speaker Thandi Modise and the Democratic Alliance (DA) filed their papers for permission to appeal directly to the ConCourt after a court order ruled in favor of Mkhwebane, halting the impeachment process.

At the time, the Supreme Court of the Western Cape was explained that certain parts of Parliament’s rules for the removal of office holders from the Chapter 9 institutions were unconstitutional.

The High Court ruled that limiting the right to legal representation for a Chapter 9 head, such as the Public Protector, was irrational, and ordered that the rules be changed.

It also ruled that a judge cannot sit on the independent panel that determines whether there is a prima facie case for a Chapter 9 head.

Mkhwebane had approached the Supreme Court to challenge the constitutionality of the rules, which were drafted and passed by the National Assembly in December 2019.

unanimous judgement Written by Justice Nonkosi Mhlanta, the ConCourt immediately appealed Parliament and the DA because the case was “urgent” and of “public interest”.

The ConCourt also indicated that Mkhwebane may be legally represented during the impeachment procedure in the National Assembly.

“The rules state that the National Assembly must ensure that the investigation is conducted in a reasonable and procedurally fair manner – this requires a full legal presentation. The appeal against this decision of the High Court therefore fails,” the verdict reads.

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The Supreme Court further ruled that the Western Cape Supreme Court “made a mistake” in ruling that no judge should be appointed to the independent panel “because it asked the wrong question”.

“This court ruled that the Supreme Court erred in breaking part of Rule 129V, which pertains to the appointment of a judge to the independent panel. The appeal on this ground was upheld and the order was quashed,” the verdict said.

Meanwhile, Mkhwebane’s cross-appeal was dismissed in its entirety because the Public Protector “failed to comply with the cross-appeal procedure” at the ConCourt.

The public defender had filed for a cross-appeal in case the ConCourt allowed the speaker and prosecutor to appeal.

She was also ordered to pay the costs of the DA.

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