Public Prosecutor Busisiwe Mkhwebane Picture: Oupa Mokoena/African News Agency (ANA)
Public Prosecutor Busisiwe Mkhwebane Picture: Oupa Mokoena/African News Agency (ANA)

Mkhwebane probe: how the review panel works

By IOL Reporter Time of article published Nov 26, 2020

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Durban: An independent review panel is set to determine whether there is a prima facie case (supported by sufficient evidence for it to be taken as proved in the absence of evidence to the contrary) for Parliament to proceed with the process of removing embattled Public Protector Busisiwe Mkhwebane.

Mkhwebane has been shrouded in controversy since she took over the reins from Thuli Madonsela in 2016.

This week, National Assembly Speaker Thandi Modise appointed Justice Bess Nkabinde as chairperson of the panel, along with advocates Dumisa Ntsebeza and Johan de Waal.

The appointment comes as Mkhwebane appealed the Western Cape High Court ruling that gave the go-ahead for the inquiry after her interdict application was dismissed. Mothapo said the Constitution and the rules of the National Assembly provided for procedures to remove an office-bearer in Chapter 9 institutions.

What started Mkhwebane’s fight to hold onto her job?

In February this year, DA chief whip Natasha Mazzone brought forward a motion calling for Mkhwebane's removal from office. Mazzone had withdrawn her first motion, which was approved in January.

In response to Mazzone's motions, Mkhwebane initiated her own legal proceedings. The public protector approached the Western Cape High Court for an interdict to stop the proceedings, but it was dismissed with costs.

Judgment in Mkhwebane’s appeal was reserved earlier this week.

The second part of her application will be heard next year.

Mkhwebane is expected to ask the court to declare the National Assembly's rules for removal of the head of a Chapter 9 institution head both unconstitutional and invalid.

How the panel works

According to Parliamentary spokesperson Moloto Mothapo, the Speaker invited parties to submit nominations for the establishment of an independent panel to conduct a preliminary inquiry to assess the motion.

"The panel must consist of three fit and proper persons who must collectively possess the necessary legal and other competencies. Parties had submitted a list of nominees," he said.

What happens next

The motion and supporting documents will be handed over to the panel who will then address both the president and National Assembly.

Within 30 days of its appointment, the panel must then conduct and finalise a preliminary assessment and decide if there is a prima facie case to show if Mkhwebane is unfit to hold office.

The panel is also requested to make recommendations and provide reasons for each recommendation. The report will be handed to the National Assembly for consideration.

Should the panel recommend Mkhwebane’s removal, the matter will be put to a vote in the National Assembly. If two thirds of the members vote in favour of removing her, the task of formally dismissing Mkhwebane will fall on the president. | IOL

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