The parliamentary committee, which is not a court, is now running a full-scale trial with oral evidence, cross-examination and the right of the Public Protector to answer in writing. This drawn-out process is now a full-blown Stalingrad 3.
Some months ago, the Constitutional Court set aside the majority of an ill-considered order granted to the Public Protector relating to the required steps for her removal from office in terms of s194 of the Constitution. However, it left intact that part of the order that granted her the right to legal representation at the mandated hearing.
Given that the President enjoys a right to legal representation in the event of removal from office and that judges enjoy the same right before a Judicial Conduct Tribunal, the Constitutional Court was doubtless correct to grant the Public Protector the same right. But as the court noted, the committee has the right to cross-examine the office bearer and further that its obligation is to hold a reasonable and fair procedure. That finding is based on Rule 129AA of the National Assembly.
It can only be to relitigate the issue of the CR17 campaign on which the highest court has already spoken definitively. And it would doubtless afford an opportunity for Mr Malema to push his agenda against the President. Thus the findings of the various courts surely constitute the basis for the charges against the Public Protector. The committee needs to consider whether these findings taken together constitute grounds for a finding that justifies removal.
Regrettably, the manner in which this hearing is unfolding is illustrative of a problem endemic to contemporary South Africa — the use of law, particularly procedure, to mount a war against the law. A core constitutional purpose was to introduce a principle of justification for the exercise of power.
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