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ConCourt judges express discomfort at Mkhwebane being denied legal representation in Parliamentary process

A PANEL of MPs begin the gruelling task of interviewing more than a dozen top candidates to succeed Thuli Madonsela as Public Protector. File Picture

A PANEL of MPs begin the gruelling task of interviewing more than a dozen top candidates to succeed Thuli Madonsela as Public Protector. File Picture

Published Nov 8, 2021


JUSTICES in the ConCourt on Monday expressed their discomfort with the denial of full legal representation to the heads of Chapter Nine institutions, when an inquiry into their fitness is held.

This emerged when they interrogated Parliament’s legal team, when it heard an application for direct access and appeal to the apex court.

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This after Speaker of the National Assembly Nosiviwe Mapisa-Nqakula’s advocate told the court Public Protector Busisiwe Mkhwebane did not require full legal representation in an inquiry into her fitness to hold office.

Justice Nonkosi Mhlantla enquired why there was distinction when it came to legal representation between Mkhwebane and the President, who was allowed full legal representation.

Advocate Andrew Breitenbach said the rules of Parliament provided that anyone removed from the office of the President may not receive any benefit and may not serve in any public office.

He also said the denial of full legal representation to heads of Chapter Nine institutions was the ultimate accountability-ensuring mechanism.

“They are personally accountable to the National Assembly in requiring them to answer to the charges. This is something which is rationally related, to ensure that they are personally accountable,” he said.

Breitenbach also said the office-bearer would be afforded time to consult legal representatives during proceedings.

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Justice Zukisa Tshiqi raised concern about persons without legal qualifications, such as the auditor-general, but Breitenbach said the rule was indiscriminate and applied to every Chapter Nine office-bearer.

Tshiqi found it odd that Parliament was not making the same submission, on the desirability of a judge in the panel sifting the motion of no confidence.

“One of the points you made is that a charge of misconduct will need a legal mind in order to sift through evidence and yet, when it comes to legal representation, you don’t make the same submission to say issues of misconduct may need legal minds,” she said.

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In his response, Breitenbach said the independent panel was concerned with skills to assess the evidence, to determine whether – if established – it will support a charge or charges in the motion.

“That is a professional legal skill, one to which judges are particularly well-suited and have as a result of their daily work. Chapter Nine office bearers facing charges should be able to address from their own personal knowledge,” said Breitenbach.

Mkhwebane’s advocate Dali Mpofu said the merits of the matter were not ripe nor appropriate for the court to hear them, for various reasons.

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Mpofu said both Mapisa-Nqakula and DA’s legal team have not addressed all the points on urgency of the application, direct access, direct appeal or exceptional circumstances.

He said the only submission on urgency was from the DA, which wanted the matter heard expeditiously.

“Urgency is one of considerations that is taken into account, in relation to direct appeals or even direct access. It can’t be demonstrated that there is any particular reason this matter must jump the queue and be heard ahead of other cases.

“That would already be a serious impediment to grant direct appeal, that the Supreme Court of Appeal must be bypassed,” added Mpofu.

He said the leave to appeal by the national legislature should be pursued, as they had complied within the 15-day deadline in the SCA.

“There is no reason that the SCA must be bypassed because the DA wants it resolved. At least, none has been advanced in this court,” said Mpofu.

Asked by Tshiqi when the term of Mkhwebane ends, Mpofu said it was in 2023.

He said two years would not be a sufficient ground for urgency of the bypassing the SCA.

Mpofu attacked the rules for removal of the Chapter Nine institution heads from office, saying they were modelled from those for the removal of the President.

“There is a heightened duty to explain why it was done. It was a right that was there, but was taken away. It has not been explained to his court why it was taken away,” said Mpofu.

He said the so-called personal accountability explanation was a non-starter.

“Everybody who faces any legal proceedings, whether criminal or civil, is accounting personally,” said Mpofu.

Judgment was reserved.