Fri, 14 Aug 2020

Three days after the National Assembly adopted rules to remove the head of a Chapter 9 institution, the DA wrote to Speaker Thandi Modise to ask that removal proceedings be instituted against Public Protector Busisiwe Mkwhebane.

On Friday, DA chief whip Natasha Mazzone announced in a statement she had taken this step.

"We are pleased by the rules which have been adopted by Parliament and have since requested that Parliament initiate fresh proceedings in accordance with Section 194[1] of the Constitution to remove Mkhwebane as soon as the second session of the Sixth Parliament commences," said Mazzone.

"The DA, from the onset, opposed the appointment of Mkhwebane as Public Protector and we consider her removal a matter of great urgency.

"She has time and again proven that she is unfit to hold office, has consistently demonstrated an inability to conduct her work independently and has illustrated a poor understanding both of the law as well as of her mandate as Public Protector. Worse, Mkhwebane's actions have caused immeasurable damage to the once respected reputation of the Office of the Public Protector."

Mazzone said despite Mkhwebane's claims to the contrary, Section 194 of the Constitution was quite clear Parliament was the correct body to consider and decide upon the removal of the Public Protector.

Section 194(3) states that the president must remove a person from office upon the adoption by the National Assembly of a resolution calling for that person's removal.

"With the adoption of the removal proceedings rules this week, we are one step closer in removing Busisiwe Mkhwebane from office and replacing her with a capable and independent Public Protector."

On Tuesday, the National Assembly adopted the rules for the removal of the head of a Chapter 9 institution.

The drafting of these rules came about as the portfolio committee on justice and correctional services considered Mazzone's predecessor as chief whip, DA interim leader John Steenhuisen's request to remove Mkhwebane.

On two occasions during the Fifth Parliament, Steenhuisen unsuccessfully attempted to have the committee institute removal proceedings against Mkhwebane.

As the Sixth Parliament got going, the DA again asked for such a process which Modise referred to the committee.

Mkhwebane wrote to Modise to complain that there were no rules for the process to remove her and threatened court action.

After considering the case, the committee referred it to the rules committee which came up with rules that entail the following:

For an inquiry to be established, according to the Constitution, the grounds for removal must be incapacity, incompetence or misconduct.An MP must bring a motion to that effect, with all supporting documents. Once checked by the speaker that it meets the criteria and that it shows a prima facie case, the speaker will refer it to an independent panel.The panel will be appointed by the speaker and must consist of three "fit and proper South African citizens", who may include a judge, and who collectively possess the legal competencies for such an assessment.The speaker may only appoint the panel after all parties represented in the National Assembly had a chance to put forward nominees. Within the 30 days, the panel will deliver its assessment to the National Assembly. If it accepts the recommendation, then a committee will be tasked with holding an inquiry.The speaker will determine how many members will serve on it, and the members will be appointed as and when necessary.The officeholder must be allowed to be heard by the committee in his or her defence.The committee's final report must contain findings and recommendations, including the reasons for these findings and recommendations.If the report recommends that the Chapter 9 institution head should be removed from office, the question must be put to the National Assembly directly for a vote and if the required majority supports the question, the National Assembly must inform the president.

On Wednesday, the National Assembly adopted the justice committee's recommendation to appoint Kholeka Gcaleka as Deputy Public Protector.

Despite concerns raised against Gcaleka by the opposition, the ANC used its majority to push through the appointment of former minister Malusi Gigaba's former legal adviser with 203 votes to 103.

Gcaleka must still be appointed by President Cyril Ramaphosa.

The Constitution also empowers the president to suspend the head of a Chapter 9 institution when he or she is under investigation. In that case, the Deputy Public Protector would act as Public Protector. This will also be the case if the incumbent is removed, until a new Public Protector is appointed.

The National Assembly rose for the year on Wednesday, so the process against Mkwhebane will likely only start in the new year.

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