Parliament on Public Protector’s fitness to hold office

Latest court bid to stop Parliament enquiring into Public Protector's fitness to hold office

Tomorrow, the Western Cape Division of the High Court (Cape Town) starts hearing Public Protector Advocate Busisiwe Mkhwebane's latest application to stop Parliament's enquiry into whether or not there are grounds for her removal from office.

The hearing is scheduled to be heard together with a similar challenge by Democracy in Action.

The Public Protector's Part B application challenges the validity of the new National Assembly (NA) Rules. Advocate Mkhwebane seeks a declaration that the rules are unlawful, unconstitutional, invalid, null and void. The DiA asks the Court to consider the lawfulness of how Parliament gives expression to its Section 194 constitutional oversight mandate.

Section 194 of the Constitution gives Parliament the power to remove office bearers of Institutions Supporting Democracy. These include the Public Protector and the Auditor General. On 3 December 2019, the NA unanimously adopted its rules to operationalise Section 194 of the Constitution.

NA Speaker Ms Thandi Modise has filed Supplementary Heads of Argument, dated 3 May. These respond to certain written submissions in the Public Protector's December 2020 Heads of Argument.

The NA Rules merely operationalise the grounds for removal of Chapter 9 office bearers and do not tamper with the grounds for their removal, as specified in Section 194 of the Constitution.

The Speaker further argues that It was incorrect of Advocate Mkhwebane to draw comparisons between her office and judges.

To read the Speaker's Supplementary Heads of Argument in full, please click https://tinyurl.com/3nnyuyxs(link is external)

The Public Protector's current Part B application follows dismissal of her Part A court application. Part A sought to interdict the NA from continuing processing a motion for the Public Protector's removal from office, pending the outcome of Part B.

In October 2020, the Western Cape Division of the High Court (Cape Town) dismissed Part A with costs. The Court said it was satisfied the balance of convenience favoured the NA proceeding with carrying out its constitutional function in terms of Section 194 of the Constitution and the NA Rules. In November 2020, the Court turned down an appeal from the Public Protector on its October judgment.

In March, the Constitutional Court dismissed the Public Protector's application for direct leave to appeal the Western Cape Division of the High Court (Cape Town) decision, as no case had been made out for such direct leave to appeal.

Enquiries:
Moloto Mothapo
Cell: 082 370 6930

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