The process to impeach public protector Busisiwe Mkhwebane will not be derailed after the Constitutional Court ruled on Friday that the appointment of a judge on an independent panel to determine grounds for her removal was correct.

This comes after an appeal to the court by the DA and the speaker of the National Assembly on the ruling of the Western Cape High Court on the matter.

A unanimous ruling of the Western Cape High Court last year had given Mkhwebane a temporary reprieve and halted the process to have her removed from office.

The judgment found that rules for removal of the heads of chapter 9 institutions were partly unconstitutional.

It found that it was unconstitutional to allow for a judge to be a member of the panel that determines that there was prima facie evidence for Mkhwebane to be impeached. It further found the rules erred by preventing Mkhwebane from being represented by lawyers during a parliamentary committee hearing on her impeachment.

The high court ruling meant that parliament may have had to restart the process, which had already begun. It had appointed retired Constitutional Court justice Bess Nkabinde to chair an independent panel which later recommended that Mkhwebane must face the music. The National Assembly last year had voted to adopt the report.

Friday's ruling means the process can now go ahead.

“The appointment of a judge to the independent panel considering whether there is prima facie evidence for the removal of a chapter 9 institution officer-bearer does not offend the doctrine of separation of powers,” the ConCourt found.

It awarded costs to the DA against Mkhwebane, who had launched a cross appeal on the same matter.

But Mkhwebane had a small victory of her own after the apex court upheld the ruling of the Western Cape High Court for her to have legal representation during the hearing.

“Part of rule 129 AD(3), which limits the right of a chapter 9 institution officer-bearer to full legal representation during a section 194 enquiry for removal from office is irrational, inconsistent with the constitution and is declared invalid,” the court said.

TimesLIVE reported previously that a motion to remove Mkhwebane from office was tabled by DA chief whip Natasha Mazzone early in 2020 in terms of the rules of parliament, which outline procedures to be followed in removing heads of chapter 9 bodies, such as the public protector.

She is accused of misconduct and incompetence, based on a number of judgments in which she was criticised by the courts.

It is not yet clear when the process for Mkhwebane's possible impeachment will restart.

TimesLIVE