Public Protector advocate Busisiwe Mkhwebane File picture: African News Agency (ANA)
Public Protector advocate Busisiwe Mkhwebane File picture: African News Agency (ANA)

Parties agree on appeal against Mkhwebane removal ruling

By Siyabonga Mkhwanazi Time of article published Aug 14, 2021

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Political parties have been arguing on whether to proceed with the inquiry on the removal of Public Protector Busisiwe Mkhwebane, after agreeing that Parliament must appeal the decision of the Western Cape High Court.

Parliament’s rules committee met yesterday to discuss the implications of the High Court judgment that some of the rules on the removal of heads of chapter nine institutions were not constitutional.

The court had made findings against the involvement of a judge in the independent panel and the legal representative of the public protector.

Mkhwebane had urged Parliament to halt the inquiry into her fitness to hold office after the judgment last month.

ANC MP Bulelani Magwanishe said Parliament should not proceed until the appeal was done.

“If we are going to appeal, the issue of legal representation is a weighty issue. If you appeal, you can’t continue.

’’I don’t think we have used a retired judge, it’s a judge that has been discharged from active service. A retired judge is the one that has reached the age of 75,” said Magwanishe.

However, all the parties in the rules committee yesterday agreed that Parliament must appeal the decision of the high court.

There were different opinions on whether the inquiry should continue despite the appeal or whether Parliament should wait for the appeal process to be finalised before proceeding.

Acting Speaker Lechesa Tsenoli said that once the appeal was registered, the court’s decision was suspended.

“Once the appeal is registered, we proceed because nobody has stopped us,” added Tsenoli.

ANC chief whip Pemmy Majodina said Parliament must appeal the decision.

“We accept that presiding officers must appeal both findings by the court. In that appeal, the judiciary must give clarity at what stage judges can be used. Are we not allowed as Parliament to use judges?

’’If not, why? That report has not been nullified; the rules of the National Assembly have not been nullified,” said Majodina.

DA chief whip Natasha Mazzone said the DA supported the decision to appeal the High Court ruling.

She said Parliament was not wrong in bringing in a judge to chair an independent panel to look at Mkhwebane’s fitness to hold.

This relates to a panel chaired by retired Constitutional Court judge Bess Nkabinde that Mkhwebane had a case to answer. The other members of the panel were advocates Johan de Waal, SC and Dumisa Ntsebenza ,SC.

Mazzone said there was nothing in getting a judge to chair the panel.

“A retired judge is not allowed to appear before the Bench anymore, that stage of their career is over. Let us not let this hinder our work. Our work must continue, there is a problem and the problem must be addressed,” said Mazzone.

Corné Mulder of the Freedom Front Plus said the judgment confirmed that the process was followed to the letter.

The judgment also raised two issues. He said other institutions had used judges before, including the Electoral Commission of South Africa that roped in retired Deputy Chief Justice Dikgang Moseneke to look at whether to proceed with the elections in October. Moseneke recommended a postponement until February.

“It is normal to use judges in those instances, they have expertise. In our case we used a retired judge,” said Mulder.

Political Bureau

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