PUBLIC Protector advocate Busisiwe Mkhwebane’s challenge on the constitutionality of the Parliamentary rules, aimed at removing her from office, got under way in the Western Cape High Court today.
Arguing on behalf of Mkhwebane, advocate Dali Mpofu SC said the court would have to determine whether the mechanism for her removal passed the constitutional muster.
Mpofu indicated that it was the duty of the court to declare the rule as good or not.
“When we ask a declaratory relief, we will be saying asking if the rules are consistent with theCconstitution. When we ask a declaratory review, is that conduct of the Speaker consistent with Constitution,” said Mpofu.
Mpofu also said if the rule identified, for a particular reason, was not consistent with the Constitution, the court should declare so and that it should also set aside the decision or conduct of the Speaker if found to be inconsistent with the Constitution.
Mkhwebane wants the court to declare the Parliamentary rules, for the removal of heads of Chapter 9 Institutions, unconstitutional and, accordingly, invalid in terms of the Constitution.
She also wants the court to determine whether the rules ought to be properly interpreted so as to give retrospective application and whether the conduct of the Speaker was violation of the Constitution.
Her current application follows her failed bid to interdict the inquiry from proceeding last year.
Arguing in the court, Mpofu said the case before the court was not about the guilt or innocence of Mkhwebane.
“Actually, in irony, this court is precluded from looking at that question. It will be looked by an ad hoc committee,” he said.
Mpofu also said the court would have to determine if the rules were fair and consistent with the Constitution.
“We are not here to determine which team is stronger than the other. We are here to determine whether the rules are consistent with the Constitution. We say: ’Here is a set of rules, examine each one of them’,” Mpofu said.
The matter will continue in the High Court on Tuesday and Wednesday.
POLITICAL BUREAU