TO: Hon Thandi Modise
Speaker of the National Assembly
12 February 2020
Email: [email protected]
Personal Assistant to the Speaker: Zodwa Ngoma, Ms
E-mail: [email protected]
REQUEST TO REVIEW AND REVOKE PROPOSED REFERRAL OF REMOVAL PROCEEDINGS AGAINST THE PUBLIC PROTECTOR
We are writing to you in your capacity as Speaker of the National Assembly to express some very serious concerns regarding your handling of the matter of the DA’s request for the institution of removal proceedings against the Public Protector Advocate Busisiwe Mkhwebane pursuant to Section 194 of the Constitution. Our approach is informed by a number of constitutional principles including accountability to Parliament, (Section 55(2)) and others which relate to Public Protector independence. We are informed by the language, context and purpose of sections 181 and 182 of the Constitution regarding the decisional independence of the Public Protector, her power to conduct investigations and issue reports as well as the legal status or effect of the Public Protector’s power to take remedial action. Further, we are guided by the principle that the Public Protector is required to be independent and subject only to the Constitution and the law, to be impartial and exercise her powers and perform her functions without fear, favour or prejudice. We are further informed by the principles underlying finality of court judgments (Section 165 and 166) and the Public Protectors constitutional rights to due process and access to court (Section 34). Most important, our approach is informed by the recognition that both you, as the Speaker of the National Assembly, and Mr. Steenhuisen, as chief whip of the Democratic Alliance (DA), an opposition party, have constitutional responsibilities and obligations imposed by sections 55(2) and 181(3) of the Constitution. The Public Protector strongly believes that you have in the manner you handled the Steenhuisen complaint or request for impeachment proceedings under Section 194 violated a number of Constitutional provisions and applicable National Assembly rules.
Vukani Community Development is a pro-black non-profit organization based in Johannesburg and whose mandate and purpose is, amongst other things, to advance and support institutions established in terms of Chapter 9 of the Constitution of the Republic of South Africa, 1996 (“Constitution”) for purposes of strengthening constitutional democracy in South Africa.
We are greatly disturbed that the Speaker has allowed the DA to disregard the Constitution which is the supreme law of the land, basic due process and the rules of Parliament in launching its attacks on the Public Protector. As you know, Section 181(3) of the Constitution requires that “other organs of state, through legislative and other measures, must assist and protect these institutions [Public Protector] to ensure the independence, impartiality, dignity and effectiveness of these institutions.”
Obviously, Section 181(3) requires strong legislative and parliamentary rules and practices which “must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.” That would preclude unwarranted threats of removal and vituperative attacks on the Public Protector based solely on the merits of her rulings or matters still pending before the judiciary. You have acceded to the DA’s request for a removal enquiry against the Public Protector based solely on the DA’s views that the courts have made adverse rulings against the Public Protector in judicial review applications brought against her office.
We hereby reiterate that the extant rules of Parliament you purported to follow do not sufficiently protect the Public Protector against those actors and complainants who have conflicts of interest and retaliatory animus against her. For starters you as the Speaker (and your Deputy) are currently involved in adversarial proceedings and litigation against the Public Protector in court. And yet you did not consider recusing yourself from the removal enquiry matter despite the glaring conflict of interest. We remind the Speaker that there is a breach of Section 181 of the Constitution when some culprit MPs under investigation and those actually found guilty of corrupt or unethical conduct have been leading voices in calling for the ouster of the Public Protector in retaliation for her investigations and rulings or that they have instigated others to engage in a series of retaliatory acts against her.
Retaliatory acts against a judicial or quasi-judicial decision-maker is inherently inimical to the rule of law and effectively destroys that official’s ability to exercise her powers and “perform their functions without fear, favour or prejudice.” Such in terrorem power left in the hands of those being investigated and those actually found guilty of corrupt or improper conduct has the effect of interfering with ongoing investigations and will inevitably distort the truth-seeking functions of the Public Protector and jeopardize fair adjudication of cases under investigation. The danger here is that Parliament has not designed rules that would safeguard against the mischief identified here. There are no rules preventing MPs with clear conflict (such as those adjudged by the Public Protector to be guilty of corrupt or unethical conduct) from participating in the Section 194 Public Protector removal process or voting either in Committees or the National Assembly when the matter of the Public Protector removal serves before Parliament.
Even worse, members of the executive such as President Cyril Ramaphosa, Pravin Gordhan and other errant ministers are still allowed to play a role in the removal process even though they are also actively litigating adverse findings by the Public Protector against them.
Further, you were informed that the Public Protector has filed a lawsuit against you in the Western Cape Division of the High Court but you chose to ignore the provisions of Rule 88 of the NA rules entitled “Reflections upon judges and certain other holders of public office.” The rule clearly and unambiguously states as follows: “No member may reflect upon the competence or integrity of a judge of a superior court, the holder of a public office in a state institution supporting constitutional democracy referred to in Section 194 of the Constitution, or any other holder of an office (other than a member of the government) whose removal from such office is dependent upon a decision of the House, except upon a separate substantive motion in the House presenting clearly formulated and properly substantiated charges which, if true, would in the opinion of the Speaker prima facie warrant such a decision.”
Here the Speaker flagrantly violated Rule 88 in that she has made no efforts to admonish MPs who have launched scathing attacks on the Public Protector on public platforms without filing “a separate substantive motion in the House presenting clearly formulated and properly substantiated charges” as required by Rule 88. This oversight has enabled the said MPs to engage in a series of conduct and actions, including launching political attacks on the Public Protector, which cumulatively violated the constitutional obligation that the National Assembly must assist and protect the institutions of the Public Protector to ensure the independence, impartiality, dignity and effectiveness of the Public Protector.
Significantly the Speaker never at any time after she received the Steenhuisen complaint or submission served the Public Protector with a copy of the said Steenhuisen complaint or submission The Speaker effectively denied the Public Protector notice of the complaint/submission setting in motion the Section 194 impeachment process and denied her the opportunity to submit a meaningful response at a meaningful time. Rule 88 requires the submission of a “separate substantive motion in the House presenting clearly formulated and properly substantiated charges which, if true, would in the opinion of the Speaker prima facie warrant such a decision.” It is inconceivable that the Speaker would, in the absence of the said substantive motion, in the absence of “clearly formulated and properly substantiated charges” and in the absence of the Public Protector’s response thereto, arrive at the conclusion that the charges “if true would in the opinion of the Speaker prima facie warrant such a decision.”
Rule 89 entitled “Matters sub judice” states in clear and unmistakable terms that: “No member may reflect upon the merits of any matter on which a judicial decision in a court of law is pending.” The Speaker’s violation of this rule could have been avoided by the Speaker providing the Public Protector with copies of the submissions or substantive motion and allowing her to respond to the matters in a timely fashion. We respectfully submit that this rule requires that when a Speaker is presented with a motion containing sundry allegations of incompetence etc. against the Public Protector emanating from court judgments she is duty-bound to consider and investigate whether the said allegations involve a matter “on which a judicial decision is pending.” Matters on which parties have sought judicial review against adverse findings by the Public Protector or matters in which the Public Protector has lodged an appeal in higher courts are quintessentially matters in which a judicial decision is pending. The Speaker’s inability or unwillingness to observe the rules further undermines judicial independence and the specific obligation of the National Assembly to defend the independence of the Public Protector.
We urgently request that you review and revoke your proposed referral of the matter to the Panel as you envisaged. You are obligated by the Constitution to respect the independence of both the judiciary and the Public Protector.
 Section 55(2) provides:
“The National Assembly must provide for mechanisms—
(a) to ensure that all executive organs of state in the national sphere of
government are accountable to it; and
(b) to maintain oversight of—
(i) the exercise of national executive authority, including the implementation of legislation; and
(ii) any organ of state.”
Chairperson of Vukani Community Development