Public Protector Busisiwe Mkhwebane and the National Assembly Speaker are expected back in court on Monday.
The Speaker wants the Constitutional Court to grant them direct access to appeal the ruling by a full bench of the High Court in Cape Town.
The court ruled in favour of the Public Protector only on two constitutional grounds.
This relates to her removal from office.
The Assembly did not have rules on the procedure to be followed to start Section 194 inquiry into her fitness to hold office.
The Justice Committee, which plays an oversight role over the Office of the Public Protector, could also not move forward in September 2019.
This led to the National Assembly Rules Committee amending the rules to make provision for the process that must be followed to remove a head of a Chapter 9 institution. It has to be in line with Section 194 of the Constitution. The grounds for removal are misconduct, incapacity or incompetence. The rules were adopted in December 2019.
Public Protector Mkhwebane heads to court over her fitness to hold office: Adv Modidima Mannya
In January last year, the Public Protector questioned the constitutionally of the adopted rules during a media briefing by her office.
“I am advised that the rules are unconstitutional and unlawful in that they amount to a violation to the constitutionality prescribed duty on organs of state to protect heads of Chapter 9 institutions,” says the Public Protector.
The adoption of the rules paved way for the for the DA to table a third motion successfully in February last year for an inquiry into Mkhwebane’s fitness to hold office.
The DA’s call for her removal were based on previous ConCourt judgments against Public Protector.
One of the main provisions in the rules is the appointment of a three-member panel. And one of the members sitting on the panel may include a judge.
The panel is established after political parties make nominations to the Speaker. And once the nominees have accepted, the panel is appointed by the Speaker. Its responsibility is to determine whether there is prima face evidence for the head of a Chapter 9 Institution to be investigated by the National Assembly.
In the case of Mkhwebane, the panel that was headed by retired Judge Sisi Khampepe found prima face evidence against her. It recommended that she has a case to answer.
The Public Protector’s initial attempts to interdict the inquiry into her fitness to hold office were unsuccessful. She wanted the process to be halted, pending the review of Part B of her court application.
During the High Court hearing in June this year one of her supporters was Democracy in Action represented by Thabo Motsweni who spoke to SABC News.
“This is really a constitutional matter. If we don’t win here, we are going to take this matter all the way to the Constitutional Court.”
The Chief of Staff in Mkhwebane’s office Sibusiso Nyembe, who also attended the court proceedings, gave his view on the claims of incompetence.
“People who are doing work at the Public Protector’s Office are a multitude of investigators. And if you say that the Public Protector is incompetent you are essentially saying, ‘I, as Sibusiso Nyembe, too, I am incompetent in what I am doing’ and that can’t be incompetent and that can’t be correct. You can’t just come up with a sweeping statement that the Public Protector is incompetent.”
Mkhwebane made twelve ‘prayers’ in her High Court application. However, the court only ruled in her favour on two constitutional grounds in July this year. This related to the Separation of Powers and her right to have full legal representation during the inquiry. On the separation of powers, Mkhwebane questioned the constitutionality of the appointment of a judge to sit on the panel that found prima face evidence against her.
The High Court ruled against the appointment of a judge to sit on a panel in the removal process conducted by another arm of the state. It ordered that the National Assembly should amend the rule on the composition of a panel, to exclude a judge.
The ConCourt is expected to hear the appeal by the Speaker and the DA vs Mkhwebane on Monday.
