National Assembly Speaker Modise said on Wednesday night that she has noted the judgment of the Western Cape High Court that found some of the rules for removing heads of Chapter 9 Institutions to be unconstitutional.
"The Speaker welcomes the court’s dismissal of the application and notes the adverse findings of the court regarding the inclusion of a judge on the independent panel and the right of the holder of such office to legal representation at the Section 194 enquiry stage of the process," spokesperson Moloto Mothapo said.
In his judgement, Justice J Baartman said it was undesirable for a judge on the independent panel that assesses the motion against the head of Chapter 9 Institution.
“The process is politically charged; the complaints emanate from scathing judicial rebuke,” Baartman said.
He also said there could be circumstances where the appointment of the judge to the panel would be appropriate, but this was not such a case.
“It is of concern that the judiciary is called upon to provide the National Assembly with legal expertise that is readily available in the profession. The members of the National Assembly who called for a judge to be part of a panel did so for expediency,” Baartman said.
Baartman also said the application succeeded to the extent that the phrase provided that “the legal practitioner or other expert may not participate in the committee” was severed from the rules.
Public Protector Busisiwe Mkhwebane approached the high court in an application where she asked for an order declaring unlawful, unconstitutional, invalid and null and void the rules governing the process in the National Assembly for motions for the removal of office bearers of Chapter 9 institutions.
Modise had opposed each of the 14 grounds of Mkhwebane's challenge.
The judgement has put into jeopardy inquiry into the fitness of Mkhwebane to hold office.
The Section 194 Committee was earlier briefed on the legal aspects of the removal of Mkhwebane from office and also considered its draft programme of action.
"Parliament is consulting its legal team, who are still studying the judgment fully, and will make a determination on the implications of the judgment on its independence and the manner in which it determines its internal processes," Mothapo said.
He also said the manner in which the Section 194 Committee proceeded would be based on the legal advice to be obtained.
Meanwhile, Mkhwebane called earlier on the National Assembly to halt the inquiry into her fitness to hold office with immediate effect.
Mkhwebane’s spokesperson Oupa Segalwe said they welcomed the judgment and their legal team was also studying it.
Segalwe said the ruling meant that the Independent Panel which was chaired by Justice Bess Nkabinde was illegally appointed.
“It follows therefore that the present process must be halted with immediate effect,” Segalwe said.
He also said continuing with the inquiry would constitute an attack on the authority of the courts, the rule of law and the constitutional rights of Mkhwebane.
“A call is accordingly made to the National Assembly to do the right thing and allow for the inevitable process of amending the rules before their lawful implementation.
“The National Assembly should take the opportunity to rectify other weaknesses identified and criticised by the court including those which may not necessarily have been declared unconstitutional at this stage,” Segalwe said.