‘Parliament permitted to remove public protector’

THE National Assembly was not only permitted to enact rules to define the removal process of a head of Chapter 9 institution, but it was required by the constitution.

This was the argument made by the legal counsel for the DA, Steven Budlender, SC, when addressing the Western Cape High Court yesterday.

Budlender was arguing in an application brought by civil society organisation Democracy in Action, which wants the court to find the rules unconstitutional and that the National Assembly failed to enact enabling legislation to give effect to them.

It also wants to declare the laws governing the Chapter 9 institutions unconstitutional and invalid for failure to provide for appropriate circumstances under which the office-bearers could be removed from office.

National Assembly Speaker Thandi Modise, Justice Minister Ronald Lamola and the DA opposed the application. The application was heard after another application by Public Protector Busisiwe Mkhwebane.

Arguing before the court, Budlender said the failure by the National Assembly to make similar rules on removal of the president was deemed to have constituted violation of the Constitution by the Constitutional Court.

“If the Constitutional Court held that the Constitution not only permits but requires rules to give effect to Section 89, how can it be said it prevents rules being made to give effect to Section 194 removal?”

Budlender also said the constitutional provision governing Chapter 9 institutions provided legislative and other measures to deal with independence, impartiality, dignity and effectiveness of the entities.

He insisted that the rules were some of the other measures that could be used by the National Assembly and the very measures the Constitutional Court held had to be used for purposes of removal proceedings.

Budlender also said the courts have previously found the National Assembly to be in breach of the constitution for not providing for the rules in the impeachment of the president and submission of a motion of no confidence in cases brought by EFF and former DA parliamentary leader Lindiwe Mazibuko.

“How can it be contended that you do it via legislation? There is no authority to support that proposition,” he said.

“It must be accepted that the National Assembly can and must enact rules to define the removal process and doing so is permitted and required by the Constitution,” Budlender added.

Budlender also disagreed with argument by Democracy in Action legal counsel that the National Assembly delegated its constitutional function to the independent panel consisting of a judge, among others, to assess the evidence to establish whether there was a prima facie case to answer by Mkhwebane. The three-member independent panel that found Mkhwebane has a case to answer.

“There is no delegation to the independent panel… In the present case there is no delegation of National Assembly power. That is not true.”

Judgement was reserved in the Democracy in Action matter as it was the case in the Mkhwebane application.