No legal ground exists not to implement new rules on removal of heads of Chapter 9 institutions

2 February 2020

The Speaker of the National Assembly, Ms Thandi Modise, has responded to a letter she received from Public Protector, Adv. Busisiwe Mkhwebane, dated 28 January 2020, in which she alleges that the rules of the House relating to the process of removing office-bearers of institutions supporting democracy (ISDs), in line with Section 194 of the Constitution, are unconstitutional and unlawful.

Her letter follows the announcement that the Speaker will refer the motion tabled by the Democratic Alliance Chief Whip, requesting that Parliament initiate proceedings for the removal of the Public Protector from office, to an independent panel of experts to conduct a preliminary assessment. The Assembly rules enjoins the Speaker to determine if a motion submitted in terms of section 194(1) of the Constitution (i.e., removal proceedings against office-bearers of ISDs) is compliant with the criteria set out in the rule (i.e., it is clearly formulated and well-substantiated) and if so to refer the motion and all supporting documentation to an independent panel.

The Speaker has confirmed that the substantive motion complied with the form requirements in the rules. The Speaker alone may not unduly obstruct the right of any MP to table a duly compliant motion submitted in line with section 194 of the Constitution.

The determination that the motion complies with the rules does not imply that a decision has been made as to the required prima facie assessment, as the independent panel of experts is yet to be established. Parties have until Friday, 7 February, to submit preferred nominees to constitute the panel.

The panel of experts must conduct and finalise a preliminary assessment, which will include an invitation to the holder of the public office to comment on the substance of the motion.

In terms of the rules of Parliament, the panel:

may, in its sole discretion, afford any member an opportunity to place relevant written or recorded information before it within a specific timeframe;

must without delay provide the holder of a public office with copies of all information available to the panel relating to the assessment;

must provide the holder of a public office with a reasonable opportunity to respond, in writing, to all relevant allegations against him or her;

must not hold oral hearings and must limit its assessment to the relevant written and recorded information placed before it by members, or by the holder of a public office, in terms of this rule; and

must include in its report any recommendations, including the reasons for such recommendations, as well as any minority view of any panellist.

Once the panel has concluded its business, it must submit its report of findings and recommendations to the Assembly – which will decide whether or not to proceed with an inquiry through a special committee of MPs.

The National Assembly and the rules of Parliament safeguard against any risk of abuse of power or unfairness, including the inquiry process outlined in the new rules.

Parliament’s processes and the rules adhere to the rules of natural justice, including the audi alteram partem rule, and are informed by the relevant constitutional principles of fairness, transparency and accountability.

Accordingly, there exists no legal impediment or grounds for the Assembly not to proceed with the implementation of the new rules.

Issued by Moloto Mothapo, Spokesperson, Parliament, 2 February 2020