Mkhwebane's fate in the hands of three legal heavyweights appointed by Speaker

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Public Protector Busisiwe Mkhwebane at a parliamentary meeting in October 2019.
Public Protector Busisiwe Mkhwebane at a parliamentary meeting in October 2019.
Jan Gerber, News24
  • Speaker Thandi Modise appointed juristic heavyweights Justice Bess Nkabinde, advocate Dumisa Ntsebeza, SC, and advocate Johan De Waal, SC, to the independent three-person panel.
  • This panel must decide whether there is a prima facie case for Public Protector Busisiwe Mkhwebane's removal.
  • The date on which the panel will start its work will be announced, whereafter it has 30 days to report back to the National Assembly.

Speaker of the National Assembly Thandi Modise appointed experienced jurists Justice Bess Nkabinde, advocate Dumisa Ntsebeza, SC, and advocate Johan De Waal, SC, to an independent three-person panel which will determine whether there is a prima facie case for Public Protector Busisiwe Mkhwebane's removal.

Earlier this year, Modise accepted a motion from DA chief whip Natasha Mazzone to institute removal proceedings against Mkhwebane.

This after the National Assembly last year adopted rules for the removal of a head of a Chapter 9 institution, such as the Public Protector.

"In accordance with the Rules, the Speaker invited parties to submit nominations for the establishment of an independent panel to conduct a preliminary inquiry to assess the motion," reads a statement from Parliamentary spokesperson Moloto Mothapo on Wednesday.

"The panel must consist of three fit and proper persons who must collectively possess the necessary legal and other competencies. Parties subsequently submitted a list of nominees. The Speaker remains grateful to parties for their considered inputs." 

Having considered the nominations, persons were then approached. Some of the nominees were, however, not available because of professional commitments and other considerations.

READ | High Court dismisses Public Protector's bid to halt parliamentary removal proceedings

"Pursuant to these considerations, the Speaker has appointed the following persons to the panel: Justice Bess Nkabinde (as Chairperson), advocate Dumisa Ntsebeza, and advocate Johan De Waal."

Nkabinde is a lawyer and has served in various judicial capacities, including as a judge in the Constitutional Court. She is now retired.

Ntsebeza is a senior counsel and has served in various positions and judicial capacities and commissions, including as an acting judge. De Waal is a senior counsel and also an academic.

"The panel will start its duties on a date to be announced," said Mothapo.

"The panel must determine whether there is prima facie evidence to show that the holder of a public office committed misconduct; is incapacitated; or is incompetent. In so doing, it must provide the holder of a public office with a reasonable opportunity to respond, in writing, to all relevant allegations.

"It may not hold oral hearings but must limit its assessment to the relevant written and recorded information placed before it. In terms of the rules, the panel must complete its work and report within 30 days.

"The report, in turn, must be scheduled for consideration by the House. The panel may otherwise determine its own working arrangements."

Mkhwebane is challenging the removal proceedings in court. The first part of her case, an application for an interdict to halt the removal proceedings, was dismissed in the Western Cape High Court last month. Her application for leave to appeal this ruling was heard on Tuesday. Judgment has been reserved.

The second part of her case asks the court to declare the rules for removal proceedings unconstitutional and invalid. This will be heard early next year. 


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