Investigation into fitness of Busisiwe Mkhwebane to hold office to proceed

The investigation into the fitness of public protector Busisiwe Mkhwebane to hold office will continue as planned.

Mkhwebane had approached the Western Cape High Court to block the process but lost her bid to halt the inquiry. 

She also lost a subsequent bid to get direct access to the Constitutional Court to appeal the matter.

An independent review panel, appointed by speaker Thandi Modise, found there was a prima facie case for parliament to remove Mkhwebane.

However, during a sitting on Wednesday of the section 194 committee inquiry of parliament to deal with the matter, EFF leader Julius Malema and NFP MP Shaik Emam questioned the implications of going ahead with the hearing.

“In line with the principle of fairness, is it correct for us to proceed with this process while the public protector has made an application to court trying to establish the constitutionality of this committee and the rules?

“I thought I must raise it from the beginning because if we are awaiting judgment, the matter has not been heard. Are we not going to be accused in the future of trying to influence the outcome of the court?” asked Malema.

Emam said he was concerned parliament was starting the inquiry while the matter was still pending in court.

“What happens if the public protector is successful in the matter she has before the court and we have gone through this entire process? Normally I would expect when there is a matter before court questioning the process we are following and whether we are entitled to, until the matter is heard and finalised my understanding is the matter should not proceed,” he said.

ANC MP Mondli Gungubele defended the decision to continue with the hearing, saying there was an earlier court decision which supported the process to continue with the probe into Mkhwebane.

Parliamentary legal adviser Fatima Ebrahim agreed, saying the attempt to interdict the parliamentary process was unsuccessful.

“On the other end is the fact that the rules are drafted in a prescriptive manner. The rules make it mandatory for the speaker in the first instance, and the committee from this stage onwards, to follow the process. It says the committee must, not the committee may.

“There is no option but for the committee to continue. Of course there is the risk that when judgment is handed down, if the court finds the rules ought to be set aside in their entirety, it would mean the committee can't continue with the process,” said Ebrahim.

She said there was a chance the court could find certain rules of the committee should be amended, but as parliament they could not pre-empt such decisions.

The committee heard the final report on the matter will be finalised and handed to the National Assembly on January 13 2022.

Next week the committee is expected to sit to begin its work. 

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