We've got news for you.

Register on TimesLIVE at no cost to receive newsletters, read exclusive articles & more.
Register now

Parliament must consider Busisiwe Mkhwebane's fitness to hold office, says Thandi Modise

31 May 2019 - 17:06 By Andisiwe Makinana
Public protector Busisiwe Mkhwebane.
Public protector Busisiwe Mkhwebane.
Image: Moeletsi Mabe

National Assembly speaker Thandi Modise has indicated the new parliament's keenness to consider a DA request to initiate procedures to remove public protector Busisiwe Mkhwebane from office.

Modise told DA chief whip John Steenhuisen this week she was seeking advice on the best way to deal with the matter as parliamentary committees were yet to be established.

TimesLIVE has seen a letter dated May 29, sent by Modise to Steenhuisen, in which she writes: “It is both appropriate and correct that the National Assembly should give careful consideration to the matters that you raise in your correspondence.

“In light of parliamentary committees currently not having been established I am seeking advice on the most appropriate way to bring the matter you raise to the attention of the relevant parliamentary structures.”

Steenhuisen wrote to Modise last Thursday requesting that parliament initiate proceedings to remove Mkhwebane from office.

He cited section 194 of the constitution which deals with the removal of the public protector from office and specifically, section 194(1) which states that the public protector may be removed from office on a finding of “misconduct, incapacity or incompetence” by a committee of the National Assembly, followed by the adoption of a resolution on said removal by two thirds of the members of the National Assembly.

“It is our submission that the conduct of the public protector since the beginning of her term in October 2016 has amply demonstrated that she is not fit to hold the office she presently occupies,” wrote Steenhuisen.

He said the conduct he was referring to included that Mkhwebane “grossly over-reached her powers” when she recommended that the constitution be amended to alter the mandate of the South African Reserve Bank and when she sought to dictate to parliament, to whom she is accountable in terms of the constitution, how and when legislation should be amended.

“Her actions in this regard compromised the independence of parliament and the effectiveness of parliamentary procedures”.

Steehuisen said in doing the above Mkhwebane had shown a poor understanding both of the law as well as of her own powers and that she had sacrificed her independence and impartiality when she consulted – as revealed in a supplementary affidavit filed by the  Reserve Bank in the North Gauteng High Court on or about September 11 2017 - with the Presidency and the state security agency on remedial action to be recommended in the ABSA/Bankorp report.

Steenhuisen also cited the North Gauteng High Court judgment which found that the public protector had “unconstitutionally and irrationally” intruded on parliament’s exclusive authority and that she had gone about crafting her recommendations in the ABSA/Bankorp report in a “procedurally unfair” manner.

Most recently, this week the North Gauteng High Court found that the public protector had failed to properly investigate a complaint from a DA Member of the Free State provincial legislature, Roy Jankielsohn, in relation to the infamous Vrede Dairy Farm. The court deemed the public protector’s report into the matter unconstitutional and invalid, and ordered that it be set aside.

“This demonstrates in no uncertain terms that the public protector is not able to properly execute her mandate, and for this reason a committee of this house should consider instituting removal proceedings against her,” said Steenhuisen.

Last December, the justice portfolio committee decided to hold off on investigating Mkhwebane's fitness to hold office, saying they would rather wait until the outcome of the DA's application to set aside her report on the Vrede dairy farm.