How Parliament could remove the Public Protector

SOUTH AFRICA - CAPE TOWN - 19-05-22 Swearing IN OF MEMBERS AND INAUGURATION OF WESTERN CAPE the Members of the 6th Provincial Parliament of the Western Cape sworn in at the Swearing in of Members in Provincial Parliament Wall Street. Ayanda Ndamane/African News AGency(ANA)

According to the Constitution, there are three grounds for the removal of the head of a Chapter 9 institution – incapacity, incompetence and misconduct.

The National Assembly’s rules committee adopted draft rules on Tuesday for the removal of the head of a Chapter 9 institution, such as the Public Protector.

The draft rules must still be adopted by the National Assembly before they come into effect, which is likely to be next year, but the draft rules indicate the process Parliament could follow to hold an inquiry into a Chapter 9 office bearer.

What are the draft rules?

The draft rules, which the rules committee adopted, are as follows: according to the Constitution, there are three grounds for the removal of the head of a Chapter 9 institution – incapacity, incompetence and misconduct.

The draft rules provide definitions for each, as follows: Incapacity includes a permanent or temporary condition that impairs a holder of public office’s ability to perform his or her work and any legal impediment to employment; incompetence includes a demonstrated and sustained lack of knowledge to carry out and ability or skill to perform his or her duties effectively and efficiently; misconduct means the intentional or grossly negligent failure to meet the standard of behaviour or conduct expected of a holder of public office.

In terms of the rules, any member of the National Assembly would be allowed to initiate proceedings for the removal of the head of a Chapter 9 institution. Such a motion must be limited to a clearly formulated and substantiated charge, which must prima facie show that the person who committed misconduct is incapacitated or incompetent.

All evidence relied upon for the motion must be attached to the motion, which must be consistent with the Constitution, laws and rules.

Once a member has given notice of such a motion, the speaker consults the member to ensure the motion is compliant with the set criteria.

When the motion is in order, the Speaker must immediately refer the motion and any supporting documents to an independent panel appointed by the Speaker for a preliminary assessment of the matter and inform the National Assembly and president without delay.

Panel chairperson

This panel must consist of three “fit and proper South African citizens”, which may include a judge and who collectively possesses the legal and other competencies and experience to conduct such an assessment.

The speaker may only appoint the panel after all parties represented in the National Assembly had a chance to put forward nominees and after the speaker had given due consideration to all persons nominated.

If a judge is appointed to the panel, the speaker must consult with the chief justice.

The speaker must appoint one of the panellists as a chairperson.

The panel must be independent and subject only to the Constitution, law and rules and it must act impartially and without fear, favour or prejudice.

It must within 30 days of its appointment conduct and finalise a preliminary assessment on the motion for the removal of the Chapter 9 institution head to determine whether there is prima facie evidence to show that the person committed misconduct, is incapacitated or incompetent.

The panel may afford any member an opportunity to place relevant written or recorded information before it.

It must, without delay provide the head of the Chapter 9 institution with copies of all available information and with a reasonable opportunity to respond in writing to the allegations against her or him.

The panel may not hold oral hearings and must limit itself to the relevant written and recorded information placed before it by the members or the Chapter 9 institution.

In its report, the panel must include recommendations and the reasons for the recommendations, as well as any minority view of any panellist.

“Once the panel has made its recommendations, the speaker must schedule the recommendations for consideration by the [National] Assembly, with due urgency, given the programme of the [National] Assembly,” reads the draft rules.

If the recommendations are adopted…

If the National Assembly resolves that an inquiry must proceed, it must be referred to a committee and the speaker must inform the president.

Parliament will establish a committee to deal with such inquiries, with the speaker to determine how many members will serve on it. The members will be appointed as and when necessary.

The committee must conduct an inquiry and establish the veracity of the charges and report to the National Assembly.

“The committee must ensure that the inquiry is conducted in a reasonable and procedurally fair manner, within a reasonable time frame,” reads the draft rules.

The office holder must be afforded an opportunity to be heard by the committee in his or her defence. He or she could be assisted by a legal practitioner, but the legal practitioner may not participate in the committee.

The committee has all the powers applicable to parliamentary committees. This means it would be able to subpoena potential witnesses.

The question before the committee is decided when a quorum is present and a majority is in agreement. The committee must report all views, including minority views.

The committee’s report must contain findings and recommendations, including the reasons for these findings and recommendations. The report must be scheduled for consideration and debated in the National Assembly with due urgency.

If the report recommends that the Chapter 9 institution head should be removed from office, the question must be put to the National Assembly directly for a vote and if the required majority of the members supports the question, the National Assembly must inform the president.

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