Public protector Busisiwe Mkhwebane. Picture: SUPPLIED
Public protector Busisiwe Mkhwebane. Picture: SUPPLIED

Parliament’s portfolio committee on justice will look into the fitness of public protector Busisiwe Mkhwebane to hold office in September, after the parliamentary recess.

The DA lodged a complaint against Mkhwebane with National Assembly speaker Thandi Modise and requested that parliament look into her fitness to hold office. 

There have been a number of adverse findings against the public protector, whose competence has increasingly come under scrutiny. The most damning was the Constitutional Court finding that she had acted in bad faith and lied during the course of litigation around the Reserve Bank’s apartheid-era bailout of Bankorp.

Judgment’s of the apex court are final and cannot be appealed. 

On Wednesday, justice portfolio chair Bulenani Magwanishe said the committee will start dealing with the matter of the public protector on September 3. 

“The committee will discuss the request and map out a way forward at the first possible opportunity when it resumes its work after the parliamentary recess period, provisionally set down for September 3 2019,” he said. “It is only after this that the committee will be able to comment further on this matter.”

The constitution clearly sets out how the public protector is appointed but says very little about the process of how to remove the head of the Chapter 9 institution. 

The portfolio committee will have to map out a process and, given the litigious nature of Mkhwebane, will have to make sure it does not err in this respect. 

According to the constitution there are three grounds to remove a public protector: misconduct, incapacity or incompetence; a finding to that effect by a committee of the National Assembly; and the adoption by the National Assembly of a resolution calling for that person’s removal from office.

The portfolio committee, if it decides to institute an inquiry into the public protector’s fitness to hold office, will have to look at the facts and allow Mkhwebane to make submissions on why she should not be removed.

If the committee makes a finding that she is not fit to hold office, this will be tabled in the National Assembly for a vote. However, she can only been removed if two thirds of the National Assembly vote in favour of it. 

The constitution also states that after the start of proceedings of a committee of the National Assembly, the president can suspend the public protector pending the outcome. This would be difficult for President Cyril Ramaphosa, who himself is the subject of a report by the public protector relating to a donation from Bosasa to his ANC presidential campaign. 

Ramaphosa is in the process of reviewing the report.

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