The Western Cape high court has found that sections of parliament’s impeachment rules are unconstitutional — in a judgment that has cast doubt on the lawfulness of the impeachment process so far against public protector Busisiwe Mkhwebane.

The unanimous judgment found the recently adopted rules for removal of the heads of Chapter Nine institutions were unconstitutional in two ways.

First, they were unconstitutional in that they allowed for a judge to be a member of the independent panel that, in terms of the rules, establishes on a prima facie basis whether there is an impeachment case to answer. And, second, because the public protector was not allowed to be represented by lawyers during the part of the impeachment process conducted by a parliamentary committee.

The majority of the public protector’s attacks on the constitutionality of the rules were dismissed. But on those two issues, the court cut offending words from the rules to make them constitutional.

However, the impeachment process against Mkhwebane has already progressed some way. There has already been an independent panel — chaired by retired Constitutional Court justice Bess Nkabinde —  whose report found that Mkhwebane had a case to answer for both misconduct and incompetence.

In a statement after the judgment, the public protector’s office said the judgment meant that the Nkabinde committee was “illegally appointed”.

“It was only because of the findings of the panel that the present parliamentary committee was consequently appointed after the tabling of the panel report in the National Assembly,” said the statement.

“It follows therefore that the present process must be halted with immediate effect,” it said.

In the judgment, judge Elizabeth Baartman said she had “no reservation” that it was “undesirable” to appoint a judge to be part of the independent panel.

“The process is politically charged. The complaints emanate from scathing judicial rebuke,” she said.

She said that while there may be times when it would be appropriate to have a judge on the panel, “this was not such a case”.

“It is of further concern that the judiciary is called upon to provide the NA with legal expertise that is readily available in the profession. As of late, the judiciary has come under attack for being partisan to political parties or factions. Judicial involvement in this process feeds into that narrative.”

The DA brought a motion for Mkhwebane’s impeachment on a number of grounds of misconduct and capacity, including findings by the Constitutional Court that she had been dishonest and acted in bad faith in litigation she had been involved in. After the independent panel found she did have a case to answer on the motion, parliament voted for an impeachment inquiry.

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