DA refers Mkhwebane’s illegal remedial action to Parliament's Legal office

20 June 2017

The DA expresses serious disquiet at the ‘remedial action’ proposed by the Public Protector, Busisiwe Mkhwebane, in which she instructed Parliament’s Committee on Justice and Constitutional Development to amend the Constitution in relation to the powers of the South African Reserve Bank (SARB).

Clearly, her recommendation goes beyond what she is legally empowered to do and is indicative of her long-term plan to render the Public Protectors office ineffective.

The effect of the ‘remedial action’ would be to instruct the Justice committee to promote the action, which in itself appears sinister and is a cause for great concern.

The DA will therefore seek a meeting with the Head of the Parliamentary Legal Services, requesting a confirmation that a Public Protector instruction for Parliament to amend the Constitution is illegal and to determine if Parliament will be taking this action on review, given the grave constitutional implications.

The SARB have received a legal opinion confirming that the ‘remedial action’ is both outside of Mkhwebane’s powers and illegal and has indicated their intention of having the matter reviewed.

The DA will be watching this process carefully and are currently exploring all possible actions to address the apparent difficulties with the remedial action in its current form, least of which is the fact that the Public Protector reports to the Justice Committee and is therefore not constitutionally empowered to instruct it to do anything.

The remedial actions announced yesterday are very disturbing and they mean that the new Public Protector has either failed to understand her role and powers as Public Protector, or she simply is prepared to break the law to drive political agendas.

Mkhwebane’s remedial action to amend the Constitution also undermines and usurps Parliamentary powers.

The National Assembly is the only institution empowered to amend the Constitution – once it has attained a two-thirds majority from MPs. Mkhwebane’s recommendation is also, therefore, a threat to Parliament’s legislative power.

When Mkhwebane was put forward as a possible replacement for Adv. Thuli Madonsela, the DA strongly opposed her appointment as we were of the belief that she was not the best candidate. We did this because we believed South Africa deserved better.

The DA will continue to investigate this matter fully with a view to taking further action as we cannot stand by as another key institution is hollowed out for the benefit of a few and at the expense of South Africa’s future.

Issued by Glynnis Breytenbach, Shadow Minister of Justice and Constitutional Development, 20 June 2017