Public Protector judgment: implications for Parliament

The North Gauteng High Court in Pretoria’s full-Bench judgment in the CR17-Bosasa case entrenched Parliament’s powers, saved the legislature from having to do the impossible and provided further “evidence” for the removal proceedings of Public Protector Busisiwe Mkhwebane.

National Assembly Speaker Thandi Modise was the second respondent in the case, and the judgment impacts Parliament at first glance in the following three ways:

1. Entrench Parliament’s powers

The court found Mkhwebane’s attitude towards the speaker was also concerning.

In an answering affidavit, she stated the speaker’s application to have one remedial action set aside was “tantamount to declaring support for the president”.

“These are reckless statements to make, especially by one state institution of another,” the court said.

In her report, Mkhwebane directed Parliament to amend the rules dealing with questions and answers in the National Assembly. The court found this was inappropriate and an “unwarranted encroachment on the speaker’s discretionary powers”.

“The speaker is pleased with the judgment because it clarifies the powers of the Public Protector as they relate to Parliament and further reinforces the principles of separation of powers upon which our constitutional democracy is based,” read a statement from Parliament which welcomed the judgment.

2. Doing the impossible

One of Mkhwebane’s prescribed remedial actions was an instruction to Parliament to task its ethics committee to investigate President Cyril Ramaphosa for failing to declare the donations.

The only problem is, Ramaphosa is no longer an MP.

He ceased being an MP when he was sworn in as president, first in February 2018, and again last year in May.

Parliament’s ethics committee can only investigate MPs. Furthermore, Mkhwebane directed Modise to instruct Ramaphosa to disclose the donations he received for the CR17 campaign in the Register of Members’ Interests.

The court agreed with Modise that she did not have the powers to instruct Ramaphosa to disclose in the register, as the Ethical Code of Conduct and Disclosure of Members’ Interests primarily applied to serving MPs.

3. More ‘ evidence ‘ for removal

Last month, Modise gave the green light to the DA’s substantive motion to institute removal proceedings against Mkhwebane.

For an inquiry to be established, according to the Constitution, the grounds for removal must be incapacity, incompetence or misconduct.

Given the severity of Tuesday’s judgment, it will likely be included in making a case for Mkhwebane’s removal as several opposition parties have already indicated.

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