South Africa: National Assembly Approves Establishment of Special Committee to Conduct Inquiry Into Public Protector's Fitness to Hold Office

Advocate Busisiwe Mkhwebane, Public Protector of South Africa (file photo).

The National Assembly (NA) plenary sitting today gave the go-ahead for the establishment of a special committee to conduct an inquiry into the Public Protector Advocate Busisiwe Mkhwebane's fitness to hold office.

This follows the House's adoption of the report of the Independent Panel of Experts, tasked with establishing whether a prima facie case existed for the motion proposing her removal. The motion was proposed by Democratic Alliance Chief Whip Ms Natasha Mazzone.

The panel, comprising Justice Bess Nkabinde (as Chairperson), Advocate Dumisa Ntsebeza and Advocate Johan De Waal, recommended that the charges based on the findings of prima facie evidence of incompetence and misconduct be referred to a special section 194 committee of the NA for formal inquiry to investigate (if it so resolves), in terms of section 194 of the Constitution.

NA Rules specify that, once the panel has made its recommendations, the Speaker must schedule these for decision by the House. If the House decides the inquiry should go ahead, it must be referred to a special section 194 committee, for formal inquiry.

NA Rules, require the section 194 committee to conduct the inquiry, establish whether the charges are genuine and report to the NA. The committee's report must contain findings, recommendations and reasons and be scheduled for consideration and debate with appropriate urgency. If the section 194 committee recommends that the Public Protector should be removed from office, the question must be put to the NA directly for a vote. If the required two-thirds majority of NA members support the question, the NA must communicate the decision to the President.

The Rules of the NA provide at least four stages of section 194 process in Parliament, namely, initiation; preliminary assessment of evidence (prima facie); an inquiry by a committee; and a decision by the House.

So far, the initiation stage, that includes a substantive motion to the Speaker, was concluded in February 2020.

Stage two was the establishment of the Independent Panel to assess evidence of whether prima facie evidence exists for the Assembly to proceed with an inquiry. The Rules specify that the Panel must comprise three fit and proper South African citizens who, collectively, possess the necessary legal and other competencies and experience to conduct the preliminary assessment. In accordance with the Rules, the Speaker invited parties to submit nominations for the establishment of an independent panel. The independent panel was established on 25 November 2020.

The third stage will be the establishment of an inquiry by a committee and finally the last stage would be the committee tabling its report to the House for its decision.

Today's NA plenary sitting also passed the Customary Initiation Bill [B7D-2019] and the Local Government: Municipal Structures Amendment Bill [B19D-2018] and these Bills will now go to the President for assent.

The NA had earlier considered both Bills and referred them to the National Council of Provinces (NCOP) for consideration. Further amendments occurred during the NCOP's consideration of the Bills and they were returned to the NA for concurrence, which happened today.

The Customary Initiation Bill responds to ineffective regulation of initiation schools, including lack of a national law dealing comprehensively with the customary practice of initiation. The Local Government: Municipal Structures Amendment Bill aims to address challenges experienced in administering and managing local government elections.

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