The Western Cape High Court on Friday reserved judgment in an application to challenge the rules for the removal from office of a head of a Chapter 9 institution.
The Western Cape High Court on Friday reserved judgment in an application to challenge the rules for the removal from office of a head of a Chapter 9 institution.

WC high court reserves judgement in impeachment rules challenge

By Mayibongwe Maqhina Time of article published Jun 11, 2021

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THE Western Cape High Court on Friday reserved judgment in an application to challenge the rules for the removal from office of a head of a Chapter 9 institution.

This after the court heard arguments from the applicant’s legal counsels of Democracy in Action and defendants National Assembly Speaker Thandi Modise, Justice Minister Ronald Lamola and the DA as well as friends of the court Corruption Watch and the Council for the Advancement of South African Constitution.

Democracy in Action wants the court to find the rules unconstitutional and that National Assembly failed to enact enabling legislation to give effect to them.

It also wants the court to declare the laws governing the Chapter 9 institutions unconstitutional and invalid for failure to provide for appropriate circumstances under which the office-bearers could be removed from office.

Arguing before the full bench, DA legal counsel Steven Budlender, SC, said the constitution provided that the Chapter 9 institutions offices were independent and their office-bearers have to be accountable to the National Assembly.

“The constitution is clear that there is a need for independence and accountability,” Bundler said.

He also said the constitution expressly permitted the removal from office of Chapter 9 institution’s office-bearers and that was done in terms of Section 194 on the grounds of incapacity, incompetence and misconduct.

“It is entirely unsurprising that the Constitution makes provision for Chapter 9 Institution office-bearers to be removed from office.

“Although Chapter 9 Institutions are critical and protect democracy, it is necessary to have a position where they can be removed where circumstances are justified.”

Budlender also said the rules operationalised the removal of office-bearers as provided in Section 194 of the constitution.

He said the National Assembly enacting the rules to define removal process was not only permitted but was required by the constitution.

“If the Constitutional Court held that the constitution does not only permits but requires rules to give effect to Section 89 (removal of the president), how can it be said to prevent rules being made to give effect to Section 194 removal?” Bundler asked.

He also stated that the constitutional provision on Chapter 9 institutions said there should be legislative and other measures to deal with independence, impartiality, dignity and effectiveness of the entities.

“Those are some of other measures that can be used by the National Assembly and the very measures the Concourt held had to be used for purposes of removal proceedings,” Budlender said about the rules.

“It must be accepted that National Assembly can and must enact rules to define removal process and doing so is permitted and required by the constitution.”

POLITICAL BUREAU

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