Process granted by parliament is unconstitutional – Mkhwebane

In a briefing to outline the findings to her investigations, Public Protector Busisiwe Mkhwebane confirmed she had concluded 12 reports since December but would provide feedback to only three of the reports.

Mkhwebane quickly addressed the elephant in the room, which was her response to National Assembly Speaker Thandi Modise approving a motion to initiate proceedings for her removal as public protector.

Parliament last week announced that it had adopted formal rules for the removal of a head of a Chapter 9 institution, which was put in a request to Modise by the DA’s chief whip, Natasha Mazzone.

In response, Mkhwebane said the process granted by parliament to remove her from office was unlawful and violated the Constitution. She said both sides of the story should be heard.

She argued that Modise never alerted her of the process to remove her from office. “I learned about this from the media. Till today, I haven’t heard from her.”

She has, through her lawyers, written to Modise to bring her attention to “the many deficiencies of the assembly rules”.

“I am not against any scrutiny. All I ask is fairness.”

Should Modise not respond to her letter, she will take the necessary steps as she believes it was possible that she was being targeted for releasing previous reports against high-profile officials.

“Since investigating Sars rogue unit matter, there were instances where I received threats…”

According to her, the letter to Modise serves to obtain clarity but also bring her concerns to the table.

“We will engage when she (Modise) responds. If she does not respond, the relevant action will follow.”

Stressing that she wished for the matter to be settled amicably, she said the rules proposed breached the rights of Chapter 9 institution heads as provided for in section 34 of the Constitution, in that they do not make provision for the requisite non-participation or recusal of a number of seriously conflicted parties in any of the envisaged processes, including the making of crucial decisions.

“By way of background, there are several parties both in the executive and the legislature, who are currently or have recently been the subjects of investigation.

“In addition, members of the Portfolio Committee on Justice and Correctional Services in the 5th administration, who have publicly pronounced and passed judgement on the very issues which reportedly form the subject of the complaint by the DA. I liken this to a situation where a judge, magistrate or arbitrator condemns someone and is later expected to conduct a fair trial of the very person.

“In terms of section 181 (3) of the Constitution, other organs of state, including the National Assembly, must assist and protect [the public protector] to ensure independence, impartiality, dignity and effectiveness. ”

Mkhwebane’s concluded reports were on the allegations of maladministration relating to irregular awarding of a contract to Tracker by SAPS. Apparently Tracker used SAPS resources such as cops, vehicles and aircraft to recover stolen vehicles.

Another was on the systematic deficiencies relating to the supply of adequate water by Ngaka Molema District Municipality in North West province to the communities in various local municipalities.

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