Impeachment of the Public Protector

In the first instance, this is the responsibility of the Ad Hoc Committee in the National Assembly, established as a part of the impeachment process.

Introduction

Over the past couple of years, the Public Protector (“PP”), BusisiweMkhwebane, has generated serious controversy about investigations undertaken, decisions made and decisions taken. Litigation against the PP has resulted in findings of a misinterpretation of law and a misunderstanding of the role of the office envisaged in the Constitution of South Africa and relevant legislation.[1]

This has led to a motion in Parliament[2] in 2020 for the commencement of proceedings for the removal of the PP. The requirements for the removal of the Public Protector are provided for in section 194(1) of the Constitution, which sets out three stages: (a) evidence of misconduct, incapacity or incompetence; (b) a finding to that effect by the National Assembly; and (c) the adoption by the Assembly of a resolution with a two-thirds majority, calling for that person’s removal from office.[3]

The independent panel report on misconduct and/or incompetence

As a first step, Parliament issued a directive to establish an Independent Panel comprising of Justice Bess Nkabinde, Advocate NdumisoNtsebeza SC and Advocate Johan De Waal SC to conduct a “preliminary assessment” of allegations of the misconduct, incompetence and incapacity of the current PP to hold office.

The independent Panel released a report on 1 March 2021[4]. The report relied on evidence submitted to them in the form of numerous reports by the PP, pleadings filed in litigation, judgments as well as the written response by the PP.

The report concluded that there was prima facie evidence of incompetence and misconduct, including a demonstration of overreach and exceeding the bounds of her powers in terms of the Constitution and attendant legislation, as well as repeated errors of the same kind and a patent misinterpretation of law.[5] While every state institution experiences litigation against it in one form or another as a matter of course, some suits are more concerning than others and hit at the heart of the competence and effectiveness in office. This is particularly problematic in the case of the PP, given her role as an investigator of impropriety in government conduct,[6] where there are findings by courts that indicate repeated errors, violations of ethics and overreach in her powers.

The approach taken by the Independent Panel was cognisant of the fact that the judgments by the courts should not be regarded as conclusive on their own and that the PP had to be given a reasonable opportunity to make her own submissions. The report stated, “[w]e are alive to the fact that the court dealt with the conduct of the [PP] in a different context, mostly whether the PP’s reports are reviewable. The question before us is different. It is whether there is prima facie evidence that the PP has committed misconduct or is incompetent, but this does not mean that the factual findings of the courts cannot be relied upon, to the extent relevant, as prima facie evidence. For example, a patently incorrect interpretation of a legislation may constitute an error of law, but it may also constitute a prima facie evidence of incompetence.”[7]

The legal status of the report is that of a preliminary assessment, to enable a special committee of the National Assembly to consider the matter and to make recommendations on impeachment to the National Assembly. It remains to be seen whether the Public Protector will attempt to approach a court with an application to review this report.

The National Assembly decided on 16 March 2021 by a 275 to 40 vote in favour of proceeding with the appointment of the special committee, as the next step in the impeachment process. This special committee was then established on 7 April 2021 and consists of 26 Members of Parliament from all parties, with 11 voting and 15 non-voting members.

The National Assembly: on what basis will it make its decision?

The major issue is to what extent ANC Members of Parliament will support a possible finding of the special committee to impeach the PP. 62 ANC Members of Parliament were not present at the vote on whether to appoint a special committee.[8] The findings in the Independent Panel’s report are of serious concern, and whilst it is hoped that Parliament will consider them on their merits, internal machinations within the ANC may not make this process a straightforward one. However, the situation may change as the process proceeds.

Mihloti Basil Sherinda
Legal Intern
mihloti@hsf.org.za

[1] For instance, in Absa Bank v Public Protector [2018] ZAGPPHC 2. See also HSF Brief on “The Importance of the outstanding constitutional court judgment on the public protector’s report on the ABSA/bankorp affair”. The court in Absa went on an exercise to explain the function and role of the Public Protector and concluded that the incumbent had failed in understanding her role as a public protector. The courts in South African Reserve Bank v Public Protector [2017] ZAGPPHC 443; Public Protector v South African Reserve Bank [2019] ZACC 29 further clarified that the role of the Public Protector cannot be to recommend a fundamental amendment of the Constitution.