NEWS
12/06/2018 10:19 SAST | Updated 12/06/2018 10:19 SAST

How To Remove A Public Protector 101

Public Protector Busisiwe Mkhwebane was supposed to appear before a parliamentary committee last week to discuss her fitness to hold office.

After less than two years in office, Public Protector Busisiwe Mkhwebane's fitness to hold her position is under scrutiny — for the second time.

Mkhwebane was last week expected to appear before the parliamentary portfolio committee on justice, where among other things, her fitness to hold office was to be scrutinised. But she did not show, claiming an unforeseen family emergency, and her absence drew the ire of committee members.

Last year, the same committee dealt with a request from the DA to institute proceedings intended to remove her from office.

But what does it take to remove a Public Protector?

According to South Africa's Constitution, the Public Protector may be removed from office on the grounds of misconduct, incapacity, or incompetence — or a finding to that effect by a committee of the National Assembly.

Mkhwebane could also be removed by the adoption of a National Assembly resolution calling for her removal from office. This requires the vote of at least two-thirds of the members of the assembly.

The Constitution also gives rights to the president to suspend Mkhwebane from office at any time after the start of the committee's proceedings. President Ramaphosa must remove Mkhwebane if a majority of the assembly votes against her.

The DA wrote to National Assembly speaker Baleka Mbete last year, asking for the institution of a process to remove Mkhwebane.

In a statement issued at the time, the party alleged that Mkhwebane failed to exercise impartiality in her role.

"Papers filed by Barclays Africa allege that Mkhwebane went out of her way to hide the fact that she received submissions from Black First Land First. She also failed to provide full records of her investigation to the South African Reserve Bank and Absa," the party alleged.

Mkhwebane came under fire for her recommendations that the Constitution be amended to alter the mandate of the SA Reserve Bank.

More recently, her findings on whether Helen Zille flouted the constitution in comments made on Twitter, raised questions about her understanding of the law, the Constitution and her mandate.

In her report, Mkhwebane held that Zille had breached the Executive Members' Ethics Code when she tweeted in 2017: "For those claiming that the legacy of colonialism was only negative, they should look at various aspects of South Africa's development, such as the judiciary and other infrastructure".

In an opinion piece published on his blog on Monday, constitutional law expert Professor Pierre de Vos wrote that the report was "a legal nonsense" that was "so legally misguided that it is difficult to believe that a qualified lawyer wrote it in good faith".