Parliamentary process to 'dethrone' Mkhwebane to continue

This is despite urgent application filed at WCape High Court asking for an interdict

Parliamentary process to 'dethrone' Mkhwebane to continue despite court challenge

7 February 2020

The parliamentary process regarding the prima facie assessment of the motion for Busisiwe Mkhwebane's removal as Public Protector will continue.

This past week, Mkhwebane filed an urgent application in the Western Cape High Court asking for an interdict to halt the parliamentary process.

"The Speaker [Thandi Modise] will oppose the application in defence of Parliament's powers as provided for in the Constitution which states that these institutions are accountable to the National Assembly," read a statement from Parliament's spokesperson, Moloto Mothapo.

"The parliamentary process regarding the prima facie assessment of the motion proposing removal from office of the Public Protector will continue."

This process entails appointing an independent panel with three members which will within 30 days determine whether the substantive motion the DA brought for Mkhwebane's removal has any merit and warrants further investigation by a committee of the National Assembly.

Motion in order

Last month, when Modise announced she had found the DA's motion in order, she gave the parties represented in Parliament until Friday to nominate candidates for this panel.

In the same statement, Mothapo said had written to parties advising them the deadline had been extended to 12 February.

"This follows requests to allow political parties represented in the National Assembly more time to submit nominees," he added.

"Once the speaker has received these names, she will apply her mind and establish the panel."

The DA has already presented its nominations to Modise.

"The DA is pleased to announce that we have put forward the names of some of the brightest legal minds in South Africa," said DA chief whip Natasha Mazzone, in whose name the motion is brought.

Fit and proper

"They include judges Robert Nugent and Jeanette Traverso. We are confident that these individuals are fit and proper to independently assess the merits of the DA's motion against the incumbent Public Protector."

Mazzone submitted the motion to Modise on December 6, three days after the National Assembly passed the rules for the removal of the head of a Chapter 9 institution, like the Public Protector.

On January 24, Modise announced she had found the motion in order and the process could proceed.

Mkhwebane expressed her dissatisfaction, and earlier this week served papers on Parliament, the president, other Chapter 9 institutions and all the parties represented in Parliament.

She is arguing the rules are illegal and unconstitutional.

Apart from the interdict to halt the removal proceedings, Mkhwebane has also asked the court to declare the rules for her removal unlawful and for an order to compel Modise to provide her with the reasons for her decision to approve Mazzone's motion.

"It is the very first time ever in our young democracy that a serious attempt is being made to remove and dethrone the head of a watchdog institution by impeachment," read Mkhwebane's affidavit.

Section 194 of the Constitution gives Parliament the power to remove a sitting Public Protector.

Mothapo said Modise had noted the papers served on her by Mkwhebane's legal representatives.

"The papers seek to challenge the constitutionality of the rules of the National Assembly regarding the removal of office bearers of Chapter 9 state institutions supporting democracy.

"The speaker will oppose the application in defence of Parliament's powers as provided for in the Constitution. The Constitution states that these institutions are accountable to the National Assembly."

'Independently determined excellent job'

Mazzone also noted Mkhwebane's application in which she accuses the DA of a campaign against her and its allegations of incompetence were made against her despite the "independently determined excellent job" she had done since her appointment.

"While Mkhwebane has every right to explore the legal options at her disposal, the DA is confident that the rules that have been adopted by Parliament for the removal of heads of Chapter 9 institutions are not only lawful, but also in line with the Constitution," Mazzone said.

"Mkwebane’s assertion that the DA has not been objective on her performance is untrue. Our assessment of her performance has been based entirely on her work and conduct throughout her tenure as Public Protector.

"She has staggered from blunder to blunder and has continuously demonstrated that she is neither fit nor proper to occupy the office of Public Protector.

"If Mkhwebane spent as much energy on conducting her work independently and practising the law as she does evading accountability, then she wouldn't have been in this position. The DA will not back down from this motion against Mkhwebane and is of the belief that she has a case to answer for," Mazzone said.

The National Assembly's rules for the removal of a Chapter 9 office bearer specify that the three-person panel must be fit and proper South Africans who collectively have the necessary legal and other competencies to conduct the assessment. A judge may be appointed but the speaker must make such an appointment in consultation with the chief justice.

Within 30 days of its appointment, the panel must conduct and finalise a preliminary assessment of the motion proposing a section 194 inquiry and make a recommendation to the speaker.

They must also immediately provide the office bearer concerned with the allegations against them and all accompanying material and afford the office bearer an opportunity to respond within a reasonable time.

The speaker must then schedule the panel's recommendation for a decision by the National Assembly.

If the National Assembly resolves that the inquiry should go ahead, the matter must be referred to a special section 194 committee for a formal inquiry. If the special committee recommends the office bearer's removal, a two-thirds majority must approve it for it to take effect in the case of the Public Protector.