The process to remove Public Protector Busisiwe Mkhwebane is already at an advanced stage, with the parliamentary committee established to probe the case against her scheduled to meet next week to consider its draft terms of reference.
But the Western Cape High Court this week made two amendments to the rules governing that process and the question now is whether this is going to force back-pedalling.
A full bench of the court on Wednesday effectively threw out two provisions in the rules, one of which had allowed a judge to sit on the independent panel the rules provide for to determine whether there’s a prima facie case.
The bench found the removal process was “politically charged” and that it was “undesirable” for a judge to be involved.
But the independent panel established for Mkhwebane’s case, headed by retired Constitutional Court justice Bess Nkabinde, has already completed its work and the process has moved on since then.
So, now, its current status is in question. Mkhwebane has issued a statement insisting the process must be halted “with immediate effect”.
But parliamentary spokesperson Moloto Mothapo said yesterday his office was seeking legal advice before deciding on a way forward.
Constitutional law expert and Accountability Now director Paul Hoffman said there were two options. “Either they’ve got to brazen it out and hope the process can still pass constitutional muster, or they’ve got to go back to the drawing board,” he said.
Hoffman said both had advantages and disadvantages.
“If they continue and she challenges the constitutionality of that, they run the risk of having the whole process delayed. But if they start from the beginning again, they also run the risk she will bring a fresh challenge.”
Council for the Advancement of the SA Constitution executive secretary Lawson Naidoo said one view was that the panel’s recommendations were not binding in any case, so the process could continue. But he said it was up to parliament.
“The issue is very much up in the air because the judgment did not clarify it,” he said. “And it’s really going to be a
question of how parliament decides to deal with it.”
The motion to remove Mkhwebane was brought by the Democratic Alliance in February last year and centres on her investigations into the bailout the SA Reserve Bank provided for what was then Bankorp during the late 1980s and early 1990s; as well into the Vrede Dairy Farm scandal and into the Financial Sector Conduct Authority (FSCA).
The reports Mkhwebane penned on those investigations have – at least in part – been set aside by courts.
By Bernadette Wicks – firstname.lastname@example.org
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