The Committee on Section 194 Inquiry resumed its work last month, on 22 February 2022, after a six-month hiatus due to court processes.

The Committee agreed to utilise the services of two external Evidence Leaders to assist it. The role of the Evidence Leaders is limited to presenting the evidence and putting questions to the Public Protector or other witnesses with the aim of empowering the Committee to assess the merits of the evidence in line with its mandate. 

Background

The National Assembly endorsed Adv Mkhwebane as the fourth Public Protector with an overwhelming majority in September 2016. The House vote tally resulting in her appointment was as follows: 266 Ayes, 79 Noes and 1 abstention.

The Democratic Alliance first submitted a complaint against the Public Protector in September 2017, renewed its request for removal proceedings in the new Parliament after the May 2019 elections – and also pointed out the lack of rules. In early December 2019, the House unanimously adopted new parliamentary rules on the Removal of Office Bearers in Institutions Supporting Constitutional Democracy.

On 21 February 2020, the DA Chief Whip, Ms Natasha Mazzone, then submitted a motion to the Speaker of the National Assembly, Ms Thandi Modise, in terms of Rule 129R of the National Assembly rules for the initiation of proceedings, more particularly an inquiry to determine whether the Public Protector should be removed from office on the grounds of misconduct and/or incompetence.

Following the declaration by the Speaker that the motion was in order, an independent panel was appointed to conduct and finalise a preliminary assessment to determine whether there is prima facie evidence showing that the Public Protector has indeed committed misconduct, or is incompetent and to make recommendations in a report to the Speaker.

To be clear, the Panel was not tasked to conduct a section 194 inquiry for the removal from office of Adv Mkhwebane. The task, if it is so resolved, is for a parliamentary committee.

After gathering evidence and listening to inputs – including some from Adv Mkhwebane herself – the panel comprising Justice Bess Nkabinde, advocate Dumisa Ntsebeza SC and advocate Johan De Waal SC said it had found substantial prima facie evidence of incompetence and misconduct – and Parliament could go ahead to form a committee to impeach her.

The panel report highlighted evidence demonstrating Adv Mkhwebane’s overreach and exceeding the bounds of her powers in terms of the Constitution and the Public Protector Act, repeated errors of the same kind, such as incorrect interpretation of the law, and other patent legal errors.

A year ago, in March 2021, guided by the report of the independent panel, the National Assembly voted in favour of establishing an inquiry by a parliamentary committee to investigate Public Protector Mkhwebane's competency for office. 

The voting proceeded with the normal rules for hybrid sittings. This meant an MP who disagreed with their party line, had to draw the presiding officer’s attention to their dissenting vote.

The votes were 275 to 40, with one abstention.

 

Process issues 

According to the National Assembly rules on the removal of heads of Chapter 9 institutions, adopted in early December 2019:

• After the Assembly resolved that a section 194 inquiry be proceeded with, the matter was referred to the Committee on Section 194 for a formal inquiry.
• The Speaker subsequently informed the President of any action or decision emanating from the recommendations.
• The Committee on Section 194 Inquiry is proceeding with the inquiry to establish the veracity of the charges and will report back to the National Assembly.
• The committee must ensure that the inquiry is conducted in a reasonable and procedurally fair manner, within a reasonable time frame.
• The committee must afford the holder of a public office the right to be heard in his or her own defence and to be assisted by a legal practitioner or other expert of his or her choice, provided that the legal practitioner or other expert may not participate in the committee.
• For the purposes of performing its functions, the committee has all the powers applicable to parliamentary committees as provided for in the Constitution, applicable law and the rules.
• Once the committee has concluded its work, it has to draft a report with findings and recommendations, including the reasons for such findings and recommendations for consideration and debate by the Assembly, with due urgency, given the programme of the assembly.
• If the report recommends that the holder of a public office be removed from office, the question has to be put to the House for a vote and if the required majority of the Members support the question, the assembly must convey the decision to the president. The Public Protector can be removed by at least two-thirds of the Members of the National Assembly.

 

Timeline of events in the impeachment process

According to the National Assembly’s programme, the Committee process is expected to conclude in September 2022.

 

24 February – 24 March 2022

Appointment of an evidence leader in the impeachment proceedings. In the same time, the evidence leader also studied the documents of the impeachment.

 

29 March 2022

On this day, the evidence which will be used in the impeachment proceedings will be tabled for the Section 194 committee.

 

30 March – 30 April 2022

Public Protector Mkhwebane will then be given a month to go through the evidence against her, and respond to the documents, which will be submitted to Parliament.

 

3 May 2022

The Public Protector’s responses to the evidence will then be tabled before the Section 194 committee.

 

4-6 May 2022

The inquiry hearings against Mkhwebane will start a day after the committee is briefed, which will take place for three consecutive days from 4 to 6 May. The hearings will end a few days later with 10 May listed as the last day.

 

31 May – 2 June 2022

This is the period where Public Protector Mkhwebane and her legal team will be provided three days to present their arguments and submit her own evidence in the hearings.

 

14-17 June 2022

Deliberations will take three days, on the 14th, 15th and 17th, in which the Section 194 committee will discuss what action they will take following arguments from both sides.

 

16–17 August 2022

A draft report of the inquiry’s hearings will be presented to the committee for consideration.

 

18 August – 18 September 2022

Public Protector Mkhwebane will be afforded a month to go through the report.

 

20 September 2022

The Public Protector’s responses to the report will then be tabled before the Section 194 committee on this day.

 

21 September 2022

Further deliberations will be take place a day after the committee considers Mkhwebane’s responses. The committee will then adopt the final report on this day as well.