Cape Town - If things could go the way of Al Jama-ah leader Ganief Hendricks, allegations of misconduct and incompetence should be put before suspended Public Protector Busisiwe Mkhwebane.
Speaking during the second day of Mkhwebane’s inquiry over her fitness to hold office, Hendricks said he could not understand why constitutional expert Hassen Ebrahim was being cross-examined by Mkhwebane’s legal representative Dali Mpofu.
He said the legal cost for the hearings were up to R1 million a day.
Hendricks noted that the inquiry had dragged for two years.
“I want the veracity of the allegations to be tested by us. Why don’t you, Mr Chair, put allegations before us and get the Public Protector to have her so-called day in court and answer?” he asked.
“Why are we dragging? Why are we involved with procedural matters? Can’t we get to the crux of the matter,” Hendricks asked.
Committee chairperson Qubudile Dyantyi said he understood the point made by Hendricks.
“I sympathise with it. That time will come. There are certain steps we have to navigate and go through,” Dyantyi said.
He also said it was the nature of such hearings not to engage with what one expected.
“We will get to that point,” Dyantyi said, adding that they have to start with testimony by witnesses.
In his earlier testimony, Ebrahim said the public protector was and organ of state and could not assume any powers except those conferred by the Constitution.
He said the public protector should exercise their powers and perform their functions in a manner that did not encroach on another sphere.
Ebrahim said the public protector was empowered to investigate any conduct in state affairs, or in the public administration in any sphere of government that is alleged or suspected to be improper, or to result in any impropriety or prejudice.
However, Ebrahim said the public protector could not investigate matters that were two years form the day of occurrence “unless there are special circumstances”.
He also said that at all times, the public protector must not put personal interest over and above the public interest, and not put personal interest above those of the Office of the Public Protector and the mandates of such office.
He told the MPs that “a particular individual’s incumbency must be separated from the constitutional office”.
According to Ebrahim, the National Assembly has wide discretion in determining how to hold the public protector accountable.
He, however, said removing the public protector from office was a very serious matter not to be undertaken lightly at all.
“In the process of discharging its function, the committee should have due regard for, among other things, the chilling effect that its decision may have on the effective exercise of the public protector’s powers by incumbents to that office.”
Ebrahim also said that engaging in a process in terms of Section 194 of the Constitution was a critical means of ensuring accountability and the rule of law.
“It is in the public interest for the process to be final,” he said.
Ebrahim said MPs should subordinate their political interests to the “institutional objectives” of holding the public protector to account and ensuring that the public was served as contemplated in the Constitution.
He also noted that a public protector may only be removed from office on any one or more of the grounds of misconduct, incapacity or incompetence.
“The definitions in the removal rules must be applied accordingly. It is up to the committee, at first instance, to determine whether the definitional requirements are met.
“Individual members of the committee may not determine their own definitions for what constitutes ‘incompetence’ or ‘misconduct’. Instead, they must adhere to the ‘institutional pre-determination’ of those concepts as set out in the removal rules.”