Public Protector’s court application to stop Parliament processing motion calling for her removal from office
11 August 2020
Tomorrow, the Western Cape Division of the High Court (Cape Town) is scheduled to start hearing the application by the Public Protector, Advocate Busisiwe Mkhwebane, to interdict Parliament from considering a motion calling for her removal from office.
The application by the Public Protector is divided into two parts. In Part A, the Public Protector seeks an interim interdict to suspend the removal process, pending a judicial review of the decision by the Speaker to accept the motion for her removal and the lawfulness of the new rules. Part B is the actual review. The hearing tomorrow relates specifically to Part A.
Speaker of the National Assembly (NA) Ms Thandi Modise is opposing the application. In her answering affidavit, of 3 March, the Speaker provides a comprehensive rebuttal of the Public Protector’s grounds for this interdict. To read the Speaker’s affidavit, please click: https://tinyurl.com/yxv6etlb and https://tinyurl.com/yyex4xm7
Parliament’s removal procedure puts practical steps in place to implement section 194 of Chapter 9 of the Constitution in a fair and transparent manner.
Chapter 9 deals with State Institutions Supporting Constitutional Democracy.
These are the Public Protector, the Auditor-General and members of the Commission for Gender Equality; the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; the Electoral Commission; and the South African Human Rights Commission.
Section 194 provides for removal from office of these office holders.
It specifies that their removal may be only:
on the ground of misconduct, incapacity or incompetence;
after a finding to that effect by a committee of the NA and;
upon the NA adopting a resolution calling for the person’s removal from office. For a resolution for removal from office of the Public Protector or the Auditor-General there must be a supporting vote of at least two thirds of NA members. A simple majority vote from NA members is needed for a resolution to remove a member of a commissions.
On 3 December 2019, the NA adopted Rules and a procedure on practical and fair implementation of section 194.
Highlights of the procedure prescribed in the Rules are as follows:
An NA member initiates a substantive motion calling for a section 194 inquiry. The motion must be in line with the Constitution and the NA’s Rules.
The NA Speaker must refer this motion and its supporting documents for preliminary assessment to an independent Panel. Political parties represented in the NA must have a reasonable opportunity to propose nominees to serve on the Panel.
The three-member Panel, of fit and proper South African citizens, must collectively have the necessary legal and other competencies and experience to conduct the assessment.
The Speaker may appoint a judge to the Panel but must make such an appointment in consultation with the Chief Justice.
The Panel, in determining whether there is prima facie evidence to sustain the motion, may, in its sole discretion, provide any NA member with an opportunity to place written or recorded information before it within a specified timeframe.
The Panel must, without delay, provide the incumbent with copies of all information available to it, relating to the assessment, and provide the incumbent with a reasonable opportunity to respond in writing to the allegations.
The Panel must within 30 days of its appointment make a recommendation to the Speaker, with reasons and any minority view of any panellist.
The Speaker must schedule the Panel’s recommendation for the NA’s decision. If the NA resolves that an inquiry should go ahead, it must refer it to a special section 194 committee for a formal inquiry.
This special 194 committee, with powers applicable to other parliamentary committees, must conduct the inquiry, establish the veracity of the charges and report back to the NA.
The committee’s report must contain findings and recommendations and reasons for these.
If the committee’s report recommends that the Auditor-General, the Public Protector or a member of an Institution Supporting Democracy should be removed from office, the question must be put to the NA directly for a vote.
Such a vote requires support of two thirds of NA members for removal of the Public Protector or the Auditor-General and a majority vote for members of Commissions.
The section 194 procedure and Rules, which the NA adopted, is part of Parliament’s ongoing elaboration of its overall constitutional responsibilities.
On 22 November 2018, for example, the NA adopted a similar procedure and Rules to implement section 89 of the Constitution: Removal of a President.
Issued by Moloto Mothapo on behalf of Parliament of South Africa, 11 August 2020
