Public protector Busisiwe Mkhwebane. Picture: REUTERS
Public protector Busisiwe Mkhwebane. Picture: REUTERS

Parliament is one step closer to drawing up the rules for the removal of the public protector and other leaders of chapter nine institutions. 

The justice and correctional services committee resolved on Tuesday to ask speaker of the National Assembly Thandi Modise, to urgently request the rules committee to deal with the matter.  . 

Public protector Busisiwe Mkhwebane has been criticised in several court judgments for the irrationality and incompetence of her reports on a number of issues, ranging from her report on the lifeboat for Absa/Bankorp and the Gupta-linked Estina dairy project in the Free State. She has also been required to personally bear part of the costs of several court cases.

Mkhwebane and President Cyril Ramaphosa are also now engaged in a court battle over her report into the R500,000 donation he received from Gavin Watson, the now deceased CEO of Bosasa (renamed Africa Global Operations). Mkhwebane found that Ramaphosa had violated the executive code of ethics and recommended that the National Prosecuting Authority investigate a case of possible money-laundering in relation to the expenditure of the campaign funds used for Ramaphosa’s ANC presidential election campaign.

In May, DA chief whip John Steenhuisen requested that a process be set in motion for Mkhwebane's removal. The party, which laid the complaint against Ramaphosa's Bosasa donation with Mkhwebane, believes she is unfit to hold office and has lost credibility.

Last week, the parliamentary programming committee decided that rules needed to be developed for the removal of the public protector.

Justice committee chair Bulelani Magwanishe said on Tuesday that he would request that the matter be attended to urgently. Notably, members of the EFF — which is a strong supporter of Mkhwebane — were not present at the committee meeting, though ANC chief whip Pemmy Majodina was there.

In a letter to Modise, Mkhwebane highlighted the fact that parliament did not have any rules for the removal of the public protector and accused Modise of violating the constitution by failing to protect her from attacks by MPs. She threatened to take Modise’s unwillingness to assist her to the courts, to seek a declaratory order and interdict her to force her to protect the office of the public protector.

She asked Modise to rescind the “unlawful” referral of her fitness to hold office to the justice committee.

Modise was unfazed by these threats, which she believed were “out of order”, and during a meeting of the parliamentary programming committee last week urged the justice committee to fast track the process to set up an inquiry into Mkhwebane’s fitness to hold office. Modise commented that the justice committee was moving a “bit slowly” in determining whether it could develop rules or not.

During the justice committee meeting on Tuesday, the danger of litigation was raised if the matter were not handled correctly.

The same situation of an absence of rules emerged during the process to impeach former president Jacob Zuma, as parliament said rules had to be developed on the procedures to be followed in such a case.

The justice committee also dealt with the process of appointing a deputy public protector when the term of office of the current incumbent, Kevin Malunga, comes to an end at the beginning of December.

Steenhuisen welcomed the decision of the justice and correctional services committee. He noted that the DA had obtained a legal opinion that recommended that parliament first adopt rules governing how removal proceedings in term of section 194 of the constitution be conducted, to ensure that all parties enjoyed legal and procedural certainty.

Ramaphosa will be obligated to remove the public protector from office if the National Assembly adopts a resolution to this effect.