Public Protector case: Casac, Corruption Watch make submissions to court

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Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Gallo Images/Lefty Shivambu
  • Parliament's rules for impeaching Busisiwe Mkhwebane is in line with international jurisprudence.
  • Advocate Michelle le Roux argued in court that deference should be given to Parliament's choices.
  • The court is hearing Mkhwebane's application to have the rules for removing a Chapter 9 head declared unconstitutional.

Parliament's rules for removing the office bearer of a Chapter 9 institution are in line with international jurisprudence, the Council for the Advancement of the SA Constitution (Casac) and Corruption Watch's legal counsel, advocate Michelle le Roux, told the Western Cape High Court on Wednesday.

The court is hearing Public Protector Busisiwe Mkhwebane's application to have the rules for the impeachment of a Chapter 9 head declared unconstitutional and invalid.

Casac and Corruption Watch are amicus curiae in the case.

READ | Mkhwebane fights impeachment rules, tells court: 'Thandi Modise is standing with the DA'

Le Roux said accountability, responsiveness and openness are foundational values of the Constitution.

Section 181 of the Constitution identifies the Public Protector as one of the institutions that strengthens constitutional democracy.

She said the Constitution created the institution, which values independence probably above all other criteria, because the Public Protector holds powerful public officials to account.

She said:

It also indicated that the Public Protector must not only exhibit a high degree of skill and competence, drawing on relevant professional experience, but also that the person in this job, the person leading this institution, is fit and proper.

"And that's because if there is any doubt, if there is any cloud over the individual that occupies the office of Public Protector, we can see that not only will it undermine public trust and confidence in the office, but it may lead to the public officials, that she has to hold accountable, disregarding the office."

READ | Public Protector case: Mkhwebane trying to dodge being held accountable by Parliament - DA

She said to ensure there is an absolutely impeccable person in the job, there are limited grounds for removal – only incapacity, incompetence and misconduct.

The removal process goes through the Constitution, Public Protector Act and the rules of Parliament to ensure that the officeholder is not removed "subject to whim or caprice or malice".

Le Roux said transparency is important to guard against vexatiousness as well as the interference of politicians.

To ensure a public, open and transparent process, the Public Protector needs to account to Parliament.

Looking at international offices similar to the Public Protector, Le Roux said, in most instances, overwhelmingly, it is the appointing authority responsible for removing an ombud.

READ | A 'confession letter', double jeopardy and dignity - Mkhwebane asks court to quash impeachment rules

She said this underscores accountability to Parliament and also protects the Public Protector.

"In a rationality review, like before the court today, deference to Parliament's choices would be an appropriate approach," Le Roux said.

"Parliament's choice here is within the range of choices elsewhere, and we would submit some deference."

Advocate Dali Mpofu, appearing for Mkhwebane, dismissed Le Roux's pleadings as unhelpful to the case.

At the Zondo Commission recently, Mpofu told Le Roux to "shut up". Mpofu was representing former SARS commissioner Tom Moyane, while Le Roux represented Public Enterprises Minister Pravin Gordhan.

The Mkhwebane matter continued into Wednesday afternoon, with Mpofu responding to arguments raised on behalf of the Speaker of the National Assembly, Thandi Modise, and the DA.


The matter is being heard by Judges Lister Nuku, Elizabeth Baartman and Mokgoatji Dolamo.

Modise is the first respondent, and the president the second. All heads of Chapter 9 institutions and also all parties represented in Parliament, albeit that not all are participating in the matter.

The DA is opposing Mkhwebane's application, while the ATM, UDM and PAC support it.

This is the second part of Mkhwebane's application.

The first part, an application to stay the National Assembly's removal proceedings against her until the current application is heard, was dismissed in October.

In March, the Constitutional Court dismissed her application for leave for a direct appeal of the Western Cape High Court's ruling.

In March, the National Assembly adopted a motion to impeach Mkhwebane after a recommendation by an independent, three-person panel recommended it.

The committee that will handle the impeachment inquiry hasn't been constituted yet, and the National Assembly is currently in recess.

It will only reconvene on 16 August.

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