Parliament says the Section 194 Committee investigating the fitness of the Public Protector Busisiwe Mkhwebane to hold office will meet on Wednesday.
This comes days after the Constitutional Court dismissed Mkhwebane’s rescission application on Friday last week. It paved way for the Legislature to continue with the inquiry.
The Constitutional Court’s decision not to entertain Mkhwebane’s rescission application to halt her removal from office was the last resort but she remains on a warpath.
Mkhwebane has not given up. She filed criminal charges last week as a result of a leaked SMS sent to Parliament’s lawyers weeks before, pre-empting the outcome of her rescission application.
“This leak, if established, clearly poses a threat to the very fabric of our democracy, the rule of law and much-needed independence of the judiciary. The country, therefore, has no choice but to get to the bottom of this matter. It cannot be swept under the carpet, it cannot be business as usual,” says Mkhwebane.
She says her office has invoked the Public Protector’s Act to also investigate the leak.
“It is yet to be clear whether the leak came from the members of the constitutional court, the administration within the judiciary, so we will also have to investigate and assist in this particular matter. so, in so far as if it comes from the administration who are employees from the department of justice then the public protector has clear jurisdiction over the matter,” Mkhwebane explains.
According to Judges Matter, the criminal case will have no bearing on the investigation into her fitness to hold office. It claims that the Constitutional Court’s rejection of Mkhwebane’s rescission application has a number of ramifications.
“The first consequence is that the case that was scheduled to be heard in the Western Cape high court on the 18th and 19th of May falls away. That’s because the dispute which gave rise to the case has also now been resolved and which means that the case is moot. The second consequence is that parliament may now proceed with the inquiry into the fitness of the public protector Mkhwebane to hold office. The related consequence is that the president may also place Adv Mkhwebane on suspension pending the finalisation of the section 194 inquiry. Although the public protector has filed a criminal case relating to the SMS that was sent to parliament’s lawyers, this does not affect the section 194 inquiries in parliament and it may proceed regardless of the criminal case,” says Judges Matter’s Mbekezeli Benjamin.
Parliament says the dismissal of Mkhwebane’s rescission application is welcomed.
Parliament Spokesperson Moloto Mothapo says, “So, what we are waiting for following the decision of the Constitutional Court which we are pleased with because it is important that the powers of parliament to hold the heads of chapter nine institutions accountable are always protected and we are pleased with that and therefore what we are waiting for is the decision of the public protector with regard to the current case that’s before the Western Cape high court because the rescission application that has now been dismissed has got a direct impact on that particular case because she sought to interdict the ongoing Section 194 inquiry pending the outcome of the Constitutional court and therefore we need to know what is the next step with regard to that.”
The National legislature is hopeful that the investigation into Mkhwebane’s fitness to hold office will be concluded before the end of the year.
“The section 194 meeting is continuing with its inquiry. And like we said there has never been anything that stopped it from proceeding with its work. And we are hopeful that within a few months we should be able to conclude their business and make recommendations before the house for the consideration before the sitting of the National Assembly of course for a decision to be taken it would require a two-thirds majority, so it will be up to the members of the house to agree or disagree with the reports, its recommendations and its findings,” Mothapo explains.
And, to achieve a two-thirds majority to remove a Public Protector from office would require 266 to 267 members of the National Assembly to vote in favour of a recommendation for her removal.
