STATEMENT: CFCR WELCOMES PUBLICATION OF RULES FOR REMOVAL OF CHAPTER 9 HEAD

On Tuesday, 26 November 2019, the National Assembly’s (NA) Rules Committee announced that it had agreed to Draft Rules to Regulate the Removal of Office Holders of Institutions Supporting Constitutional Democracy (the Rules). The Rules will govern the removal from office of heads of offices such as that of the Auditor-General and the Public Protector. 

The drafting of these Rules has been driven in earnest by the repeated calls for the removal of the Public Protector, Advocate Busisiwe Mkhwebane, by the official opposition party, the Democratic Alliance, as well as civil society. The calls for her removal stem from multiple court findings against the Public Protector in her personal capacity, and against her Office. Of these, the most notable have been the ABSA/Bankorp matter, in which the Public Protector’s Report was set aside, and she was ordered to pay 15% of the South African Reserve Bank’s legal fees. More recently, she was ordered to pay 5% of the legal costs of each of the two applicants in the Estina Dairy case.

Section 194 of the Constitution provides skeletal requirements for the removal of the Chapter 9 heads and members. Misconduct, incapacity or incompetence, a finding to that effect by a committee of the NA, and the adoption by the NA of a resolution calling for that person's removal from office are needed to remove the concerned individual. The resolution to remove the Public Protector requires a two-thirds majority vote to pass. Once the resolution is passed and the proceedings of a committee of the NA to remove the Public Protector have been initiated, the President may suspend the Public Protector. Should the committee adopt the resolution for removal, the President must remove them. 

According the Rules, any member of the NA may initiate, through a motion, proceedings for an inquiry into the removal of the Public Protector. The Speaker of the NA must then refer the motion and its supporting documents for preliminary assessment to an independent panel, and inform both the NA and the President of the referral. This panel shall comprise three members who are fit and proper South African citizens, with the necessary legal and other competencies and experience to conduct the assessment. Parties represented in the NA must be afforded reasonable opportunity to proffer nominees for the panel. A judge may be appointed to the panel but only following consultation with the Chief Justice. 

The panel must, within 30 days of its appointment, conduct and finalise a preliminary assessment on the motion proposing the removal inquiry and make a recommendation to the Speaker. The Speaker must then schedule the panel’s recommendation for a decision by the NA. If the NA decides that the inquiry should proceed, the matter must be referred to a special section 194 committee for the formal inquiry. That committee will have similar powers to any other parliamentary committee and must conduct the inquiry and establish the accuracy of the charges against the concerned individual. Following this, the committee must report back to the NA. The committee’s report, containing its findings, recommendations and reasons, must be scheduled for consideration and debate by the NA. If the report recommends that the holder of a Chapter 9 office be removed from office, the NA must then vote, and such outcome be communicated to the President for action. 

The Centre for Constitutional Rights (CFCR) notes and welcomes the adoption of the much-anticipated draft rules and awaits their final adoption. This process will allow for an inquiry into the Public Protector’s fitness to hold office and indeed, for such an inquiry into any other Chapter 9 office holder whose conduct is questioned. It is important that institutions whose function is to support the country’s constitutional democracy operate per section 181 - independently, impartially and without fear, favour or prejudice. This process will, once complete, serve as another buttress to our hard-won democracy. 

Issued by the Centre for Constitutional Rights, 27 November 2019