Mkhwebane, NA speaker square off over rules to remove her

Public Protector Busisiwe Mkhwebane and the National Assembly speaker are squaring off over the contentious rules for the removal of chapter nine institution heads again this month.

The rules were adopted last year in response to a motion the Democratic Alliance (DA) had brought to remove Mkhwebane, who subsequently took the speaker to court in a bid to have them declared unconstitutional.

In July, a full bench of the Western Cape High Court wound up ruling partially in her favour – throwing out two specific provisions which had allowed a judge to sit on the independent panel that determines whether there’s a prima facie case and barred the subjects of these kinds of proceedings from having full legal representation.

In the papers, acting speaker Lechesa Tsenoli argued the South African model of the separation of powers allowed for the performance of certain nonjudicial functions by the judiciary.

“The independent panel’s main function is to determine whether there is prima facie evidence to show that the chapter nine office bearer committed the misconduct [and] is incapacitated or incompetent for the reasons set out in the motion calling for their removal,” he said,

“The performance of this function calls for qualities and skills required for the performance of judicial functions, including independence, the weighing up of information and the forming of an opinion based on information.”

Tsenoli also pointed to the rules’ provisions for the chief justice’s involvement in the event of a judge being appointed to the panel, as a safeguard against any potential conflicts of interest.

The DA, meanwhile, argued that judges were also regularly appointed to preside over commissions of inquiry.

“Not only does our separation of powers permit judges to play a nonjudicial role. Different branches of government must utilise their expertise and their strengths to reinforce and support the duties of their counterparts,” said the party’s attorney, Elzanne Jonker.

Mkhwebane is opposing the application.

In her papers, she maintained certain functions – such as being a member of the independent panel – were “so far removed from the judicial function” that “to permit judges to perform such a function would blur the separation that must be maintained between the judiciary and other branches of government”.

She has launched a conditional cross-appeal challenging the high court’s decision to sever only the provisions it found were unconstitutional, as opposed to striking down the rules in their entirety.

The process to remove Mkhwebane was at the time of the high court’s July ruling already at an advanced stage, with a parliamentary committee having already been established to probe the case against her. It has, however, been put on ice for now.

– bernadettew@citizen.co.za