Cape Town - Rocked by Public Protector Busisiwe Mkhwebane findings against its former leader, the DA will be demanding Mkhwebane’s head during a hearing in Parliament on Wednesday.
In her finding against Zille, Mkhwebane found that her controversial tweet about “colonialism not being only negative” violated the executive members’ ethics code and was inconsistent with the high office Zille held. She directed the Speaker of the Western Cape Legislature, Sharna Fernandez, to take action against Zille within 30 days. Zille’s spokesperson, Michael Mpofu, responded that Zille would take the report on judicial review.
Parliament’s portfolio committee on justice and correctional services confirmed a meeting with Mkhwebane on the public protector rules and policy on the appointment of a special adviser to the executive authority.
Chairperson Dr Mathole Motshekga said there would be a briefing by DA MP and party chief whip John Steenhuisen during this meeting.
Mkwebhane’s findings have again led legal experts to question her understanding of the law and her job.
UCT constitutional law expert Pierre de Vos said the constitution did not bestow powers on the public protector to investigate breaches of provisions of the Bill of Rights.
“In the first instance, sections 184 and 187 empower other Chapter 9 institutions (the SA Human Rights Commission and the Commission for Gender Equality) to try and resolve human rights complaints. As a second line of defence, the courts - and ultimately the Constitutional Court - are empowered to adjudicate on breaches of the various provisions of the Bill of Rights. By purporting to rule on human rights abuses, the public protector is in breach of the separation of powers doctrine, arrogating to herself a power exercised by the judiciary,” De Vos said in his blog.
He said the public protector did not have the power to make findings on whether anyone had infringed on any of the rights protected in the Bill of Rights.
“No public protector has ever attempted to rule that a member of the executive has breached a constitutional right and there is a good reason for this: the public protector does not have the power to make such a ruling as such investigations are beyond the jurisdiction of her office,” he said.
“She has further damaged her own credibility and has again acted in a manner that suggests she lacks even basic knowledge of the law,” De Vos said.
Acting ANC Western Cape chairperson Khaya Magaxa, who laid the complaint, said Zille should resign as premier.
“As the ANC, we are vindicated by the public protector’s remedial action, which now forces the provincial legislature, according to its constitutional responsibility, to find appropriate measures to discipline Zille. We initially brought this matter before the legislature and the DA members chose to be loyal to the party and Zille rather than to the country’s constitution and the people of this province. It did not have to take the public protector for this provincial legislature to do the right thing.”
He also said they were considering another motion of no confidence in Zille.
Jabu Mahlangu, national spokesperson of the SA National Civic Organisation, said Zille’s views accounted for the housing backlog and non-delivery of basic services for marginalised communities in the province.