Inquiry into Mkhwebane's fitness to hold office a step closer as committee adopts draft rules to remove a Chapter 9 institution head

Public Protector Busisiwe Mkwhebane. (Jan Gerber, News24, file)
Public Protector Busisiwe Mkwhebane. (Jan Gerber, News24, file)

An inquiry into Public Protector Busisiwe Mkwhebane's fitness to hold office is one step closer to reality.

On Tuesday, the National Assembly's rules committee adopted draft rules for the removal of the head of a Chapter 9 institution, such as the Public Protector.

The draft rules must still be adopted by the National Assembly before they come into effect and this is only likely to happen next year.

The proposed rules were drafted by a sub-committee, chaired by ANC deputy chief whip Doris Dlakude.

Dlakude said the Organisation Undoing Tax Abuse (OUTA) wanted to be part of the proceedings, but the sub-committee rejected this proposal.

"We can't outsource the responsibility of members," she said.

Present at the meeting was ANC MP Gerhard Koornhof, President Cyril Ramaphosa's parliamentary counsellor.

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

On two occasions during the Fifth Parliament, then DA chief whip John Steenhuisen unsuccessfully attempted to have the portfolio committee institute removal proceedings against Mkhwebane.

As the Sixth Parliament got going, the DA again asked for such a process, which National Assembly Speaker Thandi Modise referred to the Portfolio Committee on Justice and Correctional Services.

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

Mkhwebane wrote to Modise to complain that there weren't rules for the process of her removal and threatened court action.

After considering the matter, the Portfolio Committee on Justice and Correctional Services referred the matter to the rules committee to draft rules for the removal of the head of a Chapter 9 institution.

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 grounds 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.

What are the draft rules?

The draft proposes that, in order for an inquiry to be established, according to the Constitution, the grounds for removal must be incapacity, incompetence or misconduct.

A Member of Parliament 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", which 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 the National Assembly 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 office holder must be afforded an opportunity 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 of the members supports the question, the National Assembly must inform the president.

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