Advocate Busisiwe Mkhwebane. FILE PHOTO: Oupa Mokoena/African News Agency (ANA)
Advocate Busisiwe Mkhwebane. FILE PHOTO: Oupa Mokoena/African News Agency (ANA)

Public Protector writes to Thandi Modise seeking clarity on 'unconstitutional' rules

By Zintle Mahlati Time of article published Jan 28, 2020

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Johannesburg - Public Protector Busiswe Mkhwebane says the rules adopted by Parliament in the process to investigate her fitness to hold office are unfair and unconstitutional.

Mkhwebane said she was concerned about the process to remove her from office and fears it would not be based on a fair trial.

Parliamentary Speaker Thandi Modise announced her approval of the motion to initiate proceedings for Mkhwebane’s possible removal from office.

This followed the adoption of new rules in December last year which, according to Modise’s office, would expand on the constitution’s provision for the removal of a head of a chapter nine institution.

The DA, which for years had taken issue with the Public Protector’s conduct, had written to Modise seeking for proceedings to be instituted against Mkhwebane. The proceedings will be followed in line with the new rules.

Mkhwebane said these rules were flawed.

"I am advised that the rules are unconstitutional. The rules do not provide for the principle of listening to both sides of the story. They breach the rights of heads of chapter nine institutions. There are both parties in the executive and legislature who have cases involving my office. The DA is involved in litigation against me about them accusing me of being a spy. The complaint by the DA has to do with issues that were drawn before the rules were written,” she said.

She has also taken issue with Modise not informing her of the decision to allow for an inquiry into her conduct.

Mkhwebane said she found out through the media that she would be facing possible removal from office. She has since written to Modise and has not ruled out the possibility of litigation in her quest to seek clarity on the unlawfulness of the rules.

“I have written to the speaker this morning and requested her to furnish me with a response. I have also asked that this process be suspended until my grievances are heard. I ask for fairness and I am not beyond scrutiny.”

"The process which has been followed in drafting the rules and the constitutionality of the process is the issue. I have further requested an undertaking from the Speaker that this grossly unfair process be temporarily suspended until all the issues I raise above have been adequately addressed amicably. I wish to stress the point that I am not against scrutiny. All I am asking for is fairness. This office and that of the Speaker of the National Assembly too are the guardians of fairness and should be exemplary,” Mkhwebane said.

Mkhwebane said she believes she would not receive a fair trial because the vary same people who criticise her would be the ones voting on whether she is competent to remain in office.

"Going public and painting this person as incompetent and that they must resign and at the same time, you must be the same person who decides on the person’s future. The rules must be detailed. We are saying let's not cause a constitutional crisis. Let the rules be constitutional and not make rules for individuals,” she said.

Mkhwebane has also moved to clear her name with regards to SA Revenue Service’ investigation into her tax affairs. The Sunday Independent reported that revenue service was investigating her tax matters.

"I wish to assure South Africans that I am a law-abiding citizen who pays her taxes just like everybody else. I have absolutely nothing to hide and I welcome SARS investigators to scrutinize my records in that regard. I undertake to cooperate fully with them."

She has also insinuated that public institutions could be used as a weapon against her office because of controversial reports she has issued against powerful politicians.

"I won't resign. I am here to serve. If the process of Parliament leads to my removal that will be God's plan. Every day we are working and changing people's lives,” she said. 

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