21/06/2017 11:49 SAST | Updated 21/06/2017 11:50 SAST

Mkhwebane Insists She Is Within Her Rights To Recommend The Constitution Is Amended

"The public protector is empowered... to take appropriate remedial action with regard to any improper conduct."

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Public Protector Busisiwe Mkhwebane.

Public Protector Busisiwe Mkhwebane is digging in her heels on her decision to recommend Parliament considered amending the constitutional clause that seeks to protect the rand.

Mkhwebane told HuffPost SA her remedial action -- recommending Absa repay R1.1 billion and the Constitution is reworded to change the SA Reserve Bank's mandate -- does not "in any way" amend the Constitution or violate the parliamentary process of approving or rejecting the bill.

According to her office, it instead refers the chairperson to the parliamentary process.

In a response to HuffPost SA via her spokesperson Cleopatra Mosana, Mkhwebane said the remedial action recommended by her office was that the chairperson of the Portfolio Committee on Justice and Correctional Services should initiate the process of amending the Constitution in the National Assembly in accordance with section 74(5) and 74(6) of the Constitution.

"When a bill amending the Constitution is introduced, the person or committee introducing the bill must submit any written comments received from the public and the provincial legislatures to the Speaker for tabling in the National Assembly," she said.

"Lastly, the public protector is empowered, by section 182(1)(c) of the Constitution, to take appropriate remedial action with regard to any improper conduct in the state affairs or conduct in the state affairs which may result in any impropriety or prejudice."

She said these sections of the Constitution prescribe the process which needs to be followed to make amendments. That process includes publishing the particulars of the proposed amendment in the National Government Gazette for public comment.

According to Mkhwebane, upon receipt of the written comments from the public and the provincial legislatures, the chairperson of the committee must then introduce the bill in the National Assembly in terms of section 73(2) of the Constitution.

On Monday, Public Protector Busisiwe Mkhwebane released her report on her investigation into allegations of maladministration, corruption, the misappropriation of public funds and the failure of government to implement the Ciex report and recover funds from Absa bank.

She recommended that Parliament evoke a constitutional amendment to the South African Reserve Bank's powers and that the Special Investigating Unit seek to recover more than R1 billion in alleged misappropriated public funds awarded to Absa in a series of apartheid-era bailouts.

Mkhwebane on Monday announced the findings of her office's investigation into the Sarb's assistance to Bankorp between 1985 and 1995, which Absa bought in 1992.

In his blog, called "Constitutionally Speaking", constitutional law expert Pierre de Vos said the public protector does not have the constitutional or legal power to instruct Parliament to amend the Constitution.

In cases like the Economic Freedom Fighters v Speaker of the National Assembly and Others as well as the Democratic Alliance v Speaker of the National Assembly and Others, De Vos said the constitutional court held that the public protector is subject "only to the constitution and the law".

He said Section 74 of the constitution prescribes in detail how the Constitution may be amended.

"Apart from the various procedural requirements, it also exclusively authorizes the National Assembly and the National Council of Provinces to amend the constitution. This must be done with special majorities. Section 74 states that a provision such as section 224 of the constitution can only be amended if supported by at least two thirds of the members of the National Assembly," de Vos said.

"By instructing parliament to amend the constitution, the remedial action of the public protector is purporting to subvert these explicit provisions of the constitution. I have no doubt that if asked to do so, a court will declare this remedial action invalid."