JUSTICES in the ConCourt on Monday expressed their discomfort with the denial of full legal representation to the heads of Chapter Nine institutions, when an inquiry into their fitness is held.
This emerged when they interrogated Parliament’s legal team, when it heard an application for direct access and appeal to the apex court. This after Speaker of the National Assembly Nosiviwe Mapisa-Nqakula’s advocate told the court Public Protector Busisiwe Mkhwebane did not require full legal representation in an inquiry into her fitness to hold office.
Justice Nonkosi Mhlantla enquired why there was distinction when it came to legal representation between Mkhwebane and the President, who was allowed full legal representation. Advocate Andrew Breitenbach said the rules of Parliament provided that anyone removed from the office of the President may not receive any benefit and may not serve in any public office. He also said the denial of full legal representation to heads of Chapter Nine institutions was the ultimate accountability-ensuring mechanism.
In November 2020 National Assembly Speaker Thandi Modise appointed former Supreme Court Judge Bess Nkabinde and senior advocates Dumisa Ntsebeza AC and Johan de Waal SC to an independent panel to consider whether there was prima facie evidence to suggest that Mkhwebane should be removed from office.
The report was handed over to parliament in February 2021, and a parliamentary spokesperson summed up its findings: "the panel concluded that there is substantial information that constitutes prima facie evidence of incompetence, and examples of this included the prima facie evidence demonstrating the Public Protector’s overreach and the exceeding of the bounds of her powers in terms of the Constitution and the Public Protector Act as well as repeated errors of the same kind, such as incorrect interpretation of the law."
On 15 March 2021, the National Assembly voted that a committee should be set up to query her fitness to hold office. This is the preliminary step in a possible impeachment. She is the first head of a Chapter 9 institution to be subject to such a process.
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