/ 7 June 2021

Court must rule on constitutionality of public protector’s removal — Mpofu

Public protector (PP) Busisiwe Mkhwebane. (Lindile Mbontsi/Foto24/Gallo Images/Getty Images)

Advocate Dali Mpofu, acting for embattled public protector Busisiwe Mkhwebane, told the Western Cape high court on Monday that it would have to decide if removing the chapter nine head from office was constitutional. 

In March, the National Assembly adopted the 119-page report of a senior panel — comprising one constitutional court judge and two advocates — recommending a section 194 inquiry be initiated to consider removing Mkhwebane from office. This was after the panel found prima facie evidence of misconduct and incompetence, given the raft of adverse court judgments against the public protector, and the perception of bias on her part. 

Section 194 of the constitution allows for the impeachment of heads of chapter nine institutions, such as the public protector; the South African Human Rights Commission; the Commission for Gender Equality; the office of the auditor general; the Electoral Commission of South Africa (IEC); and the Commission for the Protection of the Rights of Cultural, Religious and Linguistic Communities.

Mkhwebane has once again turned to the courts to contest the grounds of her removal by questioning the validity and constitutionality of the National Assembly rules. 

Mpofu told the court that the case was not about the guilt or innocence of the public protector, but was based on the premise of whether her removal was constitutional. 

He referred to it as a separation of powers matter, arguing that, “The court is the only place in this country that can declare whether the [National Assembly] rules are constitutional or not.” 

He said each rule must be examined against a backdrop of rationality and the constitution and that, “if they don’t meet the test, we win”.

This application is part B of Mkhwebane’s challenge. 

The part A bid was an effort to obtain an interdict against the National Assembly’s process of removing her from office. It was finally dismissed in November 2020 after Mkhwebane appealed the decision. 

The Western Cape high court will hear the respondents in the part B challenge from Tuesday to Thursday. Among the respondents are President Cyril Ramaphosa, political parties, and the South African Human Rights Commission.