Public Protector accountable to the National Assembly, court hears

Removing a Chapter 9 head from office is the ultimate form of accountability, and all Chapter 9 institutions are accountable to Parliament, advocate Andrew Breitenbach, SC argued on behalf of the Speaker of the National Assembly Thandi Modise.

On Thursday, the hearing in the first part of Public Protector Busisiwe Mkhwebane’s proceedings against Parliament’s removal proceedings against her continued in the Western Cape High Court, with Breitenbach leading arguments, after advocate Dali Mpofu SC did so on behalf of Mkhwebane the day before.

The court battle began in February, after Mkhwebane filed an urgent bid in the Western Cape High Court seeking an interdict to halt the parliamentary process to remove her from office, which was set in motion by Modise’s approval of a DA motion. This, after the National Assembly approved rules for such a process, also called impeachment, in December.

The removal process was currently at the stage where Modise must appoint a three-person panel that must determine whether there was a prima facie case for Mkhwebane’s removal.

Breitenbach said Modise was busy with this process, and would continue with it unless she was interdicted by the court.

Breitenbach said all Chapter 9 institutions were accountable to the National Assembly.

“This is about holding someone to account, not necessarily removing someone,” Breitenbach said.

Ultimate

He said in a ruling, the Chief Justice said removal from office was the ultimate form of accountability.

He said the Constitution empowered the National Assembly to make rules to conduct its business, and there was also an obligation on the National Assembly to make rules for the removal of a Chapter 9 head.

One of the arguments raised by Mpofu was that the rules did not allow Mkhwebane legal representation.

Breitenbach said it was not a trial, but an assessment by a body who appointed someone on the basis that she was competent to fulfil her functions.

He said it was a matter between the National Assembly and the office holder.

He said it would also “avoid the spectacle” of the recent impeachment proceedings in the US, where there were impeachment hearings and the person impeached, President Donald Trump, didn’t say a word during the proceedings.

Application

The interdict was only the first part of the application, Part A.

Mkhwebane was also asking the court to set aside the rules for the removal of Chapter 9 institution heads, such as the Public Protector, which the National Assembly adopted in December, and rule it unconstitutional and invalid, which is Part B.

The court was currently only dealing with Part A. The court was informed on Thursday that all parties agreed to a timetable for Part B, which would be heard on 24 and 25 November, if the Judge President agreed to these dates.

The hearing continued through Thursday afternoon, with submissions expected from counsel for the DA and President Cyril Ramaphosa.

News24 Wire

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