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Equality and the Commission for the Protection of the Rights of Cultural, Religious and Linguistic Communities. These institutions are independent of Government and subject only to the provisions of the Constitution and the law (common law and statute). All of these institutions are required to report annually to Parliament. The independence of Section 9 institutions was deliberate on the part of those involved in the drafting of the new South African Constitution, and was intended to ensure that in the future this independence and limitations on tenure of office would avoid a situation where any form of bias or manipulation of office holders could take place. This is also probably at the core of the reason that the drafters of the Constitution did not put in place review mechanisms or a system in terms of which the holders of office within Section 9 institutions could be reviewed in respect of their performance or continuing fitness to hold office following their appointment by the State President. The alternative would be to regard this as an error of
omission which, given the calibre of those tasked with drafting the Constitution, would seem unlikely. The Democratic Alliance launched a bid in 2019 to review the fitness of Mkhwebane to hold office following a number of adverse findings against her in superior Courts when findings and recommendations of the Public Protector were taken on review. At this stage it became apparent that there were no mechanisms in place for a Parliamentary review, and Speaker of Parliament Thandi Modise established a bipartisan Committee to set the rules that would apply for the review of a section 9 office bearer which were duly adopted. A substantive motion for a review of the Public Protector was made by the Democratic Alliance to Parliament and, in terms of the newly adopted rules, nominations for suitably qualified panel members to conduct the enquiry were called for by Modise. An extension was recently granted for the nomination of the panel members. In summary, the National Assembly Rules about removing Chapter 9 office bearers require a three-person
panel of fit and proper South Africans who collectively have the necessary legal and other competencies to conduct the assessment. A judge may be appointed, but the Speaker must make such an appointment in consultation with the Chief Justice. Following the announcement of the assessment process the Public Protector’s office announced Mkhwebane has filed an urgent bid on 4 February 2020 in the Western Cape High Court on Tuesday 4 February to challenge the lawfulness and constitutionality of the rules which the National Assembly is using for the review process as well as a number of other parties, including political parties and other Chapter 9 institutions being cited as parties in the papers to the extent that they are interested parties but no order is sought against them. The Public Protector has stated that she is not averse to the review and assessment process per se but wishes to ensure that the rules applied are in accordance with the Constitution and are fair. The assessment is grounded in a number of reviews by
INDEX OF ADVERTISERS & CONTRIBUTORS
January 2020
Courts on review and these have been covered in previous articles (refer to Public Protector’s Review Under Review, The South African Reserve Bank Rougue Unit Report and Estina Dairy Report and implications) for their context and findings of the Courts, no purpose will be served in summarising of making detailed at this stage. What is abundantly clear is that (to quote Mkhwebane in her recent announcement) “our young democracy” is at a seminal point from both a legal and Constitutional point with decisions being made that have a profound influence going forward on the application and function of Section 9 institutions. Given that these bodies were incepted and designed to protect South Africa and South Africans under the terms of the Constitution the importance of the processes currently underway in the Courts and Parliament cannot be under estimated. PETER BAGSHAWE holds a Bachelor of Law degree from the former University of Rhodesia and a Bachelor of Laws degree from the University of the Witwatersrand.
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