Mkhwebane welcomes court judgment on rules of her removal

The office of the Public Protector on Wednesday said it welcomes the judgment by the Western Cape High Court, which declared certain sections of the current rules for the removal of Heads of Chapter 9 Institutions to be unconstitutional.

Busisiwe Mkhwebane’s office said she was in the process of studying the judgment before announcing further action likely to be taken.

Mkhwebane had approached the High Court to challenge the constitutionality of the rules of the National Assembly.

This relates to a decision in Parliament to allow a motion for her impeachment inquiry to proceed.

She questioned National Speaker Thandi Modise’s conduct when she granted the motion by the Democratic Alliance (DA.)

Mkhwebane wanted the motion set aside if the court found that Modise’s conduct was inconsistent with the Constitution.

Her office said that Wednesday’s judgment meant that the independent panel chaired by Justice Bess Nkabinde was “illegally appointed.”

Mkhwebane’s office said that the present process must be halted with immediate effect.

“To continue on the basis of the old unamended and partly unconstitutional Rules, as if nothing has happened, would constitute an attack on the authority of the courts, the rule of law and the constitutional rights of the Public Protector,” reads the statement.

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“It is already clear that two of the most important findings of unconstitutionality relate to the denial of legal representation before a Section 194 Committee established in terms of section 194 of the Constitution as well as the unconstitutionality of the appointment of a judge to form part of an Independent Panel, which makes the trigger decision of the existence of a prima facie case.”

Mkhwebane’s office made calls to the National Assembly take this opportunity as a learning curve and rectify weaknesses identified and criticised by the court including those which may not necessarily have been declared unconstitutional at this stage.

“Any rushed process can only result in another wasteful, flawed and illegal outcome,” reads the statement.