ATC190226: Report of the Portfolio Committee on Justice and Correctional Services on the request for the National Assembly to expedite procedure to remove the Public Protector in terms of section 194 of the Constitution, dated 26 February 2019

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the request for the National Assembly to expedite procedure to remove the Public Protector in terms of section 194 of the Constitution, dated 26 February 2019
 

The Portfolio Committee on Justice and Correctional Services, having considered the request for the National Assembly to expedite proceedings to remove the Public Protector in terms of section 194 of the Constitution, reports as follows:

 

1. The Speaker of the National Assembly received a letter dated 16 February 2018 from Mr J Steenhuisen, MP, requesting that the National Assembly expedite procedures to remove the Public Protector, Adv. B Mkhwebane, from Office in terms of section 194 of the Constitution read with section 2(1) (c) of the Public Protector Act 23 of 1994. On 14 March 2018, the letter was referred to the Portfolio Committee on Justice and Correctional Services for consideration and report.

 

1. On 13 June 2018, Mr Steenhuisen appeared before the Committee to motivate the request for Parliament to expedite proceedings to remove the Public Protector. The Committee agreed that the Public Protector also be afforded an opportunity to respond to the allegations in writing, which she did on 5 July 2018.

 

1. The Constitution, in section 194(1) provides the grounds on which the Public Protector may be removed from office, namely misconduct, incapacity or incompetence. Section 194 of the Constitution also regulates the process for the removal of the Public Protector from Office.

 

1. The Committee deliberated on this matter on 5 December 2018. It is of the view that section 194 of the Constitution and section 2(1)(1)(c) of the Public Protector Act, 1994, envisage a factual inquiry into the fitness of the Public Protector. It is the National Assembly that must determine that the Public Protector’s conduct renders her unfit to hold office. This discretion cannot be replaced by the court’s view, however pertinent. The Committee noted that legal proceedings related to the judgement are ongoing. As such, the Committee believes that it would be premature for removal proceedings to be instituted against the Public Protector.

 

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1. The Committee recommends that the House does not support the request to expedite proceedings to remove the Public Protector, Adv. B Mkhwebane from Office.