Court to hear Public Protector's bid to stop motion to remove her from office
In her papers, filed in the Western Cape High Court, Modise said there was no basis for Mkhwebane to argue that the process should be stopped.
Mkhwebane had called her removal from office unconstitutional and unlawful. But Modise states in the papers there were grounds for the motion to be processed by Parliament.
She said Parliament was within its rights to pursue the matter as Mkhwebane was accountable to the National Legislature.
The hearing is set down for Tuesday after weeks of stalling.
Modise also said Mkhwebane would have an opportunity to present her case to Parliament, once the process gets under way. The Speaker had to get names of individuals to serve on a three-member panel to look at the prima facie evidence against Mkhwebane.
Modise said the court must throw out Mkhwebane’s application.
“Mkhwebane alleges the function performed by the National Assembly under Section 194 of the constitution is ‘quasi-judicial’. Although I have reservations about the label ‘quasi- judicial,’ it is clear that Section 194 of the constitution requires, as a pre-requisite for the removal of the public protector from office, an investigation by a committee of the assembly into whether one or more grounds for the impeachment of the public protector exists, including a fair hearing to allow her to respond to charges and a finding by a committee that such a ground does indeed exist,” Modise stated in the papers.
She said Parliament would have to support the removal of Mkhwebane with a two-thirds majority. This would be done by various political parties who are elected by the public.
She said this was an accountability mechanism of Parliament.
“Mkhwebane alleges the right of access to justice in Section 34 of the constitution applies to the assembly process under Section 194 of the constitution. For two related reasons, I dispute this allegation.
“First, an impeachment motion does not raise a legal dispute, one that can be resolved solely by application of law.
“Second, the ultimate decision-making body, the assembly, is not a court or an independent and impartial tribunal or forum,” she said.
“Although the impeachment process is governed by Section 194 of the constitution and the new rules, as just explained the outcome or resolution of the process is determined by an exercise of political judgment made by a body comprising representatives of the political parties elected by the people in a general election,” said Modise.
Parliament approved new rules on the removal of a head of a Chapter 9 institution including the public protector last December. This came after Mkhwebane had warned the speaker last year there were no rules to remove her from office.
The new rules were drafted by a committee of Parliament and then approved by the National Assembly.