PUBLIC Protector Busisiwe Mkhwebane last night called on the National Assembly to halt the inquiry into her fitness to hold office with immediate effect.
This after the Western Cape High Court found some rules for the removal of heads of Chapter 9 Institutions unconstitutional.
This happened hours after the Section 194 Committee decided to proceed with the inquiry and adopted a draft programme because the court had not made a ruling on her application to declare the rules unconstitutional.
This was despite EFF leader Julius Malema and NFP MP Munzoor Shaik Emam questioning the wisdom of forging ahead with the inquiry while a judgment was being awaited.
In his judgment, Justice Elizabeth Baartman said it was undesirable for a judge to be on the independent panel that assesses the motion against the head of a Chapter 9 Institution.
“The process is politically charged; the complaints emanate from scathing judicial rebuke,” Justice Baartman said.
He said there could be circumstances where the appointment of the judge to the panel would be appropriate, but this was not such a case.
“It is of concern that the judiciary is called upon to provide the National Assembly with legal expertise that is readily available in the profession. The members of the National Assembly who called for a judge to be part of a panel did so for expediency,” Justice Baartman said.
He also said the application succeeded to the extent that the phrase “provided that the legal practitioner or other expert may not participate in the committee” was severed from the rules.
Mkhwebane’s spokesperson, Oupa Segalwe, said they welcomed the judgment and their legal team was studying it.
Segalwe said it was already clear that two of the most important findings were the denial of legal representation and the appointment of a judge who formed part of an Independent Panel that assessed the motion calling for Mkhwebane’s removal.
She said the ruling meant that the Independent Panel which was chaired by Justice Bess Nkabinde was illegally appointed.
“It follows therefore that the present process must be halted with immediate effect,” Segalwe said.
He said continuing with the inquiry would constitute an attack on the authority of the courts, the rule of law and the constitutional rights of Mkhwebane.
“A call is accordingly made to the National Assembly to do the right thing and allow for the inevitable process of amending the rules before their lawful implementation.
“The National Assembly should take the opportunity to rectify other weaknesses identified and criticised by the court, including those which may not necessarily have been declared unconstitutional at this stage,” Segalwe said.
Parliament’s spokesperson, Moloto Mothapo, said they were aware of the judgment.
“We are studying the judgment and will issue a statement,” Mothapo said.
Meanwhile, the Section 194 committee resolved to narrow the scope of the inquiry and limit itself to the motion brought by DA MP Natasha Mazzone.
It also resolved to have a “hybrid” approach when conducting the inquiry, where evidence would be committee member-led, assisted by both internal and external expertise.
Committee chairperson Qubudile Dyantyi said the public participation would have to be relevant to the fact-finding mission.
Dyantyi said they agreed on the audi alteram partem (listen to the other side) rule, fairness and rationality to be afforded to Mkhwebane throughout the process.
The committee also adopted a draft programme that would be finalised in a meeting next week.
In terms of the draft programme, the committee’s final report would be adopted in January 2022 for tabling in the National Assembly.