Mkhwebane’s lawyers serve parliament with court papers over removal process

Parliament has been engaging with Public Protector Busisiwe Mkhwebane’s lawyers over the legislature’s proceedings to consider removing her, National Assembly Speaker Thandi Modise has said.

“They are serving us with papers,” Modise said when asked about the proceedings to remove Mkhwebane in terms of Section 194 of the constitution at a press briefing ahead of next week’s State of the Nation Address.

Modise said she does not have a problem with the public protector’s move. “We are a democracy.”

Last month, Modise announced she had approved the DA’s motion to institute removal proceedings against Mkhwebane.

This after DA chief whip Natasha Mazzone lodged a substantive motion to that effect with Modise’s office in December.

The DA’s motion was lodged three days after the National Assembly approved the rules for the removal of the head of a Chapter 9 institution like the public protector.

Last week, Mkwhebane said the rules for the removal of the head of a Chapter 9 institution was unlawful and unconstitutional. In a statement, Modise stood by the rules and process followed.

The ANC had its first caucus meeting of the year on Thursday morning, with deputy secretary-general Jessie Duarte in attendance.

Duarte said: “The clarity on the matter is that right now there is a process in place. But the ANC has not discussed either way where we stand, so we can’t give you a direct answer as the organisation.

“What will happen is that once the process is at the point where parliament will have to make a decision then the chief whip and caucus will discuss and give guidance on what to do. So right now, there is no decision.

“What there is, is a process in place.”

When Modise announced she had approved the DA’s motion, she gave the parties represented in the National Assembly until Friday to nominate candidates for an independent panel of three who would assess whether there was a case to be made for Mkhwebane’s removal.

ANC chief whip Pemmy Majodina said the ANC would submit its proposed candidates for the panel on Friday.

Meanwhile, the ATM said in a statement that it too was served with Mkhwebane’s urgent application papers against the removal process, and that it had written to Modise to ask her to postpone the process.

“We have forwarded the papers to our attorneys with instructions to support the application which calls for the speaker to suspend the process until the constitutionality of the rules has been confirmed by the court,” read the ATM’s statement.

“We hold a view that the speaker has a duty to be seen to be neutral and independent. She should not oppose the application but should welcome the opportunity for the court to give much-needed clarity because this process is new in South Africa and is unprecedented.”

Despite one of its two members, Thandiswa Marawu, having served on the sub-committee which drafted the rules, the party said it was “particularly shocked to learn from the court papers that the new rules are nothing but a cut and paste job from the rules for the removal of the president in spite of the differences between sections 89 and 194 of the Constitution”.

While the rules bear a strong resemblance to that for the removal of a president, the committee drafted the rules afresh.

Last week, after ANC MP Bongani Bongo’s appearance in court on corruption charges, fellow MP Supra Mahumapelo said the party would never support the DA’s motion to remove Mkwhebane.

After the caucus meeting, Duarte said this was raised at the meeting.

“We have distanced ourselves from his remarks and we made it clear he was speaking on his own behalf,” she added.

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