It's Mkhwebane vs parliament in court as fight over removal from office heats up
Public protector Busisiwe Mkhwebane wants to interdict parliament from considering a motion calling for her removal from office.
The matter is set down for hearing in the high court in Cape Town on Wednesday, and is divided into two parts.
In Part A, which will be heard on Wednesday, Mkhwebane seeks an interim interdict to suspend the removal process, pending a judicial review of the decision by the speaker of the National Assembly to accept the motion for her removal and the lawfulness of the new rules.
National Assembly speaker Thandi Modise is opposing the application.
Mkhwebane launched the challenge in February after a motion by DA MP Natasha Mazzone seeking her removal from office.
Her challenge is against the constitutionality of the rules of the National Assembly regarding the removal of office bearers of Chapter 9 state institutions.
Section 194 provides that the public protector, the auditor-general or a member of a commission established by Chapter 9 of the constitution may be removed from office only on the ground of misconduct, incapacity or incompetence.
The section also provides for the removal on a finding to the effect by a committee of the National Assembly and the adoption by the Assembly of a resolution calling for that person's removal from office.
In her answering affidavit filed with the court on March 3, Modise provided a rebuttal of the public protector’s 10 grounds she relied upon in her application for the interdict.
In her application, Mkhwebane said in determining whether she committed impeachable conduct, the National Assembly cannot rely on the findings of judges in litigation concerning her.
Mkhwebane said the National Assembly must decide for itself whether she misconducted herself or was incompetent.
“I agree. I however point out that the charges in the DA's motion of February 21 2020, which is the operative motion, invite the National Assembly to make the relevant findings for itself.
“The fact that the DA has attached the judgments of certain courts as evidence in support of those charges does not detract from this,” Modise said.
Modise said what this meant in practical terms was that if the National Assembly resolved to proceed with a section 194 inquiry, the members of the section 194 committee may probably derive guidance from the judges' reasoning.
She said the members may ask the witnesses, including Mkhwebane, questions based on the judges' reasoning, including whether they admit or dispute facts found by the judges and on which the charges are now based.
“However, at the end of the inquiry, the members will have to decide for themselves whether any or all of the charges, misconduct or incompetence have been established,” Modise said.