National Assembly Speaker Thandi Modise has appointed retired Constitutional Court Justice Bess Nkabinde, Advocate Dumisa Ntsebenza and Advocate Johann de Waal to determine whether there is prima facie evidence that Public Protector Busisiwe Mkhwebane is not fit to hold office.
This, after the National Assembly adopted a motion by DA Chief Whip Natasha Mazzone calling on the House to institute proceedings to remove Mkhwebane claiming she was not fit to hold office.
Mkhwebane’s court application
Mkhwebane approached the Western Cape High Court to stop Modise from going ahead but, her application was dismissed by the full bench of the court in early October.
Judge Vincent Saldanha ruled that Mkhwebane had not made a clear and strong case for the Parliamentary processes to be suspended. In his ruling, Judge Saldanha said he was satisfied with the arguments by Parliament that the Public Protector has several remedies available to her.
Even if she is dismissed but later wins her case against the constitutionality of the process to remove her, she could seek an order for reinstatement on the basis that she was removed through an unlawful process among others.
Mkhwebane wanted the High Court to halt the process pending a determination on the constitutionality of the National Assembly rules for removing the head of a Chapter 9 institution from office.
In terms of the National Assembly rules, an independent panel – possibly headed by a judge – must be appointed after a substantive motion has been received.
