Public Protector Busisiwe Mkhwebane Picture: Thobile Mathonsi/African News agency/ANA
Public Protector Busisiwe Mkhwebane Picture: Thobile Mathonsi/African News agency/ANA

WC High Court hears another application challenging rules on removal of Public Protector

By Mayibongwe Maqhina Time of article published Jun 10, 2021

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The Western Cape High Court on Thursday heard another application seeking to declare the rules for the removal of a head of Chapter 9 institutions unconstitutional.

This comes hot after another application brought by Public Protector Busisiwe Mkhwebane heard earlier this week and its judgement was reserved.

The latest application was brought up by civil society organisation, Democracy in Action (DIA), on the grounds of public interest.

National Assembly Speaker Thandi Modise, President Cyril Ramaphosa, Justice and Correctional Services Minister Ronald Lamola, Chapter 9 institutions and the DA are some of the respondents.

Civil society organisations, Corruption Watch and Council for the Advancement of the South African Constitution have been admitted as the friends of the court.

The DIA is represented by advocates Vuyani Ngalwana and Nomgcobo Jiba.

In its court papers, DIA is asking the court to declare that the National Assembly failed to pass legislation to give effect to the removal from office of the Public Protector and other heads of Chapter 9 institutions.

It also wants the court to declare the laws governing the Chapter 9 institutions inconsistent with the constitution as they failed to make provision for removal of for appropriate circumstances under which the office-bearers could be removed from office.

The organisation wants the court to declare the new rules for the removal of office-bearers unconstitutional and suspend the declarations of the acts for the Chapter 9 institutions for two years in order to allow the National Assembly time to remedy the defect.

Arguing before the full bench, Ngalwana said Parliament has no power to develop rules without first passing legislation to that effect.

He also said Parliament has no power to constitute a committee comprising non-members of Parliament whether to investigate and make findings on prima facie basis for impeachment purposes.

Ngalwana added that it was impermissible, undesirable and therefore an abrogation of the dignity, effectiveness, independence and impartiality of Chapter 9 institution to publish complaints against it at the initial stage of a removal process.

The application, which is currently being heard, is opposed by Modise and Lamola.

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