The parliamentary inquiry into Public Protector Busisiwe Mkhwebane’s fitness to hold office is set to commence with its work next week.
On Wednesday, the committee heard from parliament’s legal adviser, Fatima Ebrahim, who outlined the rules that would underpin the work of the committee, known as the Section 194 Inquiry, because it deals with the removal of a head of a Chapter 9 Institution.
Ebrahim said the rules of inquiry were meant to ensure the process that would be undertaken was “fair, balanced and beyond reproach”.
“The first rule is that this process is a constitutional process. This committee is not conducting a criminal inquiry nor should it be seen to be such. This is not a judicial process and it’s not a litigious process,” she said.
In March, the National Assembly voted in favour of establishing an ad hoc committee to investigate Mkhwebane’s competency for office after an independent review panel said it found substantial information that constitutes prima facie evidence of incompetence and misconduct by her.
The independent review panel was established by National Assembly Speaker Thandi Modise last year after the DA tabled a motion for Mkhwebane’s removal from office.
The panel comprised retired Constitutional Court justice Bess Nkabinde, advocate Dumisa Ntsebeza and advocate Johan de Waal.
Ebrahim told MPs their responsibility was not to prove the guilt or innocence of Mkhwebane, but whether there were grounds for her removal on the basis of fact and law.
“This is instead ultimately an oversight process. Indeed, it does have a political element in that it will accumulate in a decision by the National Assembly, which of course consists of members of political parties,” she said.
In short, the process that we are going to follow must be an inquisitorial process rather than an accusatorial process.
The Economic Freedom Fighters (EFF) and the National Freedom Party (NFP) raised concerns about the inquiry going ahead while the Western Cape High Court was yet to rule on Mkhwebane’s application challenging Parliament’s rules on the removal of heads of Chapter 9 institutions.
The high court heard the application in June.
Despite this, Ebrahim said the process could go ahead because the high court in December last year dismissed Mkhwebane’s urgent application to interdict the removal proceedings against her.
The final report of the committee is expected to be finalised by 13 January 2022.