Parliament to come up with rules for the removal of Public Protector

2019-08-27 12:06

Parliament's Rules Committee will devise a process for the removal of the Public Protector.

The Portfolio Committee on Justice and Correctional services met on Tuesday morning to discuss DA chief whip John Steenhuisen's request that Parliament initiates proceedings to remove Busisiwe Mkhwebane as the Public Protector.

READ | Parliament to consider request to remove Public Protector on Tuesday

The committee unanimously agreed to refer the matter to National Assembly Speaker Thandi Modise to, in turn, refer it the rules committee to establish the rules for the process that must be followed.

The EFF, which came out as staunch Mkhwebane supporters in recent months, did not have a representative at the meeting.

ANC MP Xola Nqola said it was a responsible approach which would prevent the committee from "presiding over a highly litigious matter".


DA MP Glynnis Breytenbach voiced her party's support for the resolution.

Committee chairperson Bulelani Magwanishe said he would write to Modise on Tuesday and impress on her the urgency of the matter.

READ | Modise irked by 'out of order' Mkhwebane, wants inquiry into Public Protector's fitness to hold office fast-tracked

As the 6th Parliament got going, the DA again asked for such a process, which Modise referred to the committee.

Amid a slew of court findings against Mkhwebane, the calls for the process to be expedited increased from the DA and civil society organisations.

Last week, Modise also said that the process had to be fast tracked, the Sunday Times reported.

Previously, Mkhwebane wrote to Modise to complain that there weren't rules for the removal process and threatened court action. Modise reportedly didn't take kindly to Mkhwebane's tone.

In a statement released shortly after the committee's decision, Steenhuisen - who did not attend proceedings, while his counterpart of the ANC, Pemmy Majodina, did - said the DA welcomed the decision.

"The DA has since obtained a legal opinion which recommends that Parliament should first adopt rules governing how removal proceedings in terms of Section 194 [of the Constitution] should be conducted, in order to ensure that all parties enjoy legal and procedural certainty," he said.

"We therefore fully support the decision taken by today's meeting of the portfolio committee, and are hopeful that it signifies that Parliament is approaching the matter with the care and attention it deserves."

'Fit and proper'

According to Section 193 of the Constitution, the Public Protector must be a "fit and proper" person.

"That the Constitutional Court upheld an order that Advocate Mkhwebane, the incumbent head of a Chapter 9 institution, personally pay the legal costs in proceedings instituted against her office, is no small matter and it deserves the full and undivided attention of Parliament. There are, moreover, numerous further instances in which the Public Protector has acted improperly, which should not fall by the wayside," said Majodina.

"The DA does not believe Advocate Mkhwebane is up to the job, and we will not rest in our efforts to ensure that South Africans are given the Public Protector they deserve."

Section 194 of the Constitution prescribes the following for the removal of the Public Protector: "The Public Protector may only be removed from office on the ground of misconduct, incapacity or incompetence, a finding to that effect by a committee of the National Assembly and the adoption by the National Assembly of a resolution calling for that person's removal from office."

This resolution needs to be supported by a two-thirds majority of the National Assembly.

The president may suspend a Public Protector at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person, and must remove a person from office upon adoption by the National Assembly of the resolution calling for that person's removal.

The Constitution does not stipulate the process to be followed. It does, however, empower Parliament to determine its own processes.

After dealing with the Mkhwebane matter, the committee also discussed filling the post of her deputy. The tenure of the incumbent, Kevin Malunga, comes to an end on December 9. The committee will adopt a programme to fill the post on Wednesday, which will include a public participation process. 

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Read more on:    public protector  |  parliament  |  busi­siwe mkhwebane  |  cape town  |  politics

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