While Parliament has named the committee that will probe whether there are grounds to remove Public Protector Busisiwe Mkhwebane from office, it is important to consider what the Constitution says, writes Moloto Mothapo. Picture: Oupa Mokoena/African News Agency (ANA)
While Parliament has named the committee that will probe whether there are grounds to remove Public Protector Busisiwe Mkhwebane from office, it is important to consider what the Constitution says, writes Moloto Mothapo. Picture: Oupa Mokoena/African News Agency (ANA)

How an inquiry against public protector will unfold

By Moloto Mothapo Time of article published Apr 18, 2021

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Just short of two weeks from now, South Africa will be marking 27 years of our non-racial democracy, based on the supremacy of the Constitution and the Rule of Law.

The Constitution specifies the roles of our state institutions – including Parliament –and establishes six State Institutions Supporting Democracy.

These six institutions, which are accountable to Parliament’s National Assembly (NA), are the public protector (PP); the auditor-general (AG); the Commission for Gender Equality; the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; the Electoral Commission; and the South African Human Rights Commission.

The Constitution, in section 194, also says how removal from office of the PP, the AG or a member of a commission may happen. Their removal may be only:

  • On the ground of misconduct, incapacity or incompetence.
  • After a finding to that effect by a committee of the NA and
  • Upon the NA adopting a resolution calling for their removal from office.

For a resolution for removal from office of the PP or AG, there must be a supporting vote of at least two thirds of NA members. A simple majority vote from NA members is needed for a resolution to remove a member of any other commission.

On December 3, 2019, the NA adopted rules to govern the removal process and to ensure that the NA gives effect to section 194 in a manner which is fair and transparent. This process envisages that any NA member may initiate proceedings for a section 194 inquiry, through a substantive motion – a self-contained proposal, containing all information needed.

The motion must be in line with the Constitution and the NA’s Rules. The NA Speaker must refer this motion and its supporting documents for preliminary assessment to an independent panel. Political parties represented in the NA must have a reasonable opportunity to propose nominees to serve on the panel.

The three-member panel, “of fit and proper South African citizens”, must collectively have the necessary legal and other competencies and experience to conduct the assessment. The Speaker may appoint a judge to the panel but must make such an appointment in consultation with the Chief Justice.

The panel, in determining whether there is prima facie evidence (accepted as correct unless proved otherwise) to sustain the motion, is entitled to provide any NA member with an opportunity to place written or recorded information before it within a specified time. The panel must, without delay, provide the incumbent with copies of all information available to it, relating to the assessment, and provide the incumbent with a reasonable opportunity to respond in writing to the allegations. The panel must make a recommendation to the Speaker – with reasons and any minority view of any panellist.

The independent panel, appointed in November 2020, consisted of retired Constitutional Court Judge Bess Nkabinde (as chairperson), advocate Dumisa Ntsebeza (SC) and advocate Johan de Waal (SC).

In its report submitted on February 24 this year, the panel found there was substantial information amounting to prima facie evidence of incompetence and also sufficient prima facie evidence of misconduct. It recommended the charges be referred to a committee of the NA.

On March 16, the NA adopted the panel’s report and voted in favour of establishing a Section 194 Committee. The Section 194 Committee, with the same powers as other parliamentary committees, must conduct the inquiry in a reasonable and procedurally fair manner and within a reasonable time. This includes providing the PP with the opportunity to be heard in her own defence and to be assisted by a legal practitioner or other expert of her choice. The legal practitioner or expert may not, however, participate in the Committee.

The Section 194 Committee must establish the veracity of the charges and report back to the NA. Its report must contain findings and recommendations and reasons for these, and the NA must consider and debate the committee’s report as soon as possible.

If the committee’s report recommends that the PP be removed from office, the question must be put directly to the NA for a vote. Such a resolution must be adopted with a supporting vote of at least two thirds of the members of the NA. If that happens, the president must remove the PP from office.

The current section 194 procedure, now unfolding, is just the most recent example of Parliament’s efforts to enhance its Constitutional responsibilities. In 2018, the NA adopted a similar procedure and rules on removal from office of a president, in terms of section 89 of the Constitution.

Section 89 says that the NA may, by a resolution adopted with a supporting vote of at least two thirds of its members, remove a president from office only on the grounds of a serious violation of the Constitution or the law, serious misconduct or inability to perform the functions of office.

* Moloto Mothapo is the spokesperson for Parliament.

** The views expressed here are not necessarily those of IOL and Independent Media.

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