By Lehlohonolo Lehana.
President Cyril Ramaphosa says suspended Public Protector Busisiwe Mkhwebane has “no right or entitlement in law to return to office” pending the final decisions by the committee of the National Assembly established in terms of section 194 of the constitution.
This follows Mkhwebane’s statement, posted on X (formerly Twitter), on Monday, Mkhwebane argued that the proceedings and inquiry into her fitness to hold office, as outlined in section 194 of the Constitution, have been finalised.
She contended that the period of suspension defined in the Presidential minute issued in terms of section 194(3)(a), read with section 101(1) of the Constitution, has expired.
As a result, she informed Ramaphosa of her intention to resume her duties, citing courtesy and protocol.
“Therefore and as a matter of courtesy and protocol Advocate Mkhwebane has advised President Ramaphosa that she will be reporting back to work tomorrow morning on Tuesday 5 September 2023,” Mkhwebane’s statement read.
However, Ramaphosa said the committee has not finalised the proceedings.
“Now that the Committee has adopted its report, the proceedings which were initiated by the Committee will be finalised either when the Mational Assembly does not adopt a resolution calling for your removal from office; or if the National Assembly does adopt such a resolution, when I act in terms of section 194(3)(b) of the Constitution.
“It is therefore patently clear that the process initiated by the Committee is not completed (as your letter suggests) when the enquiry by the Committee has been finalised,” Ramaphosa said.
Ramaphosa said he has also not been informed of any resolution having been taken by the National Assembly as contemplated by section 194(2) of the Constitution.
Mkhwebane’s decision comes just a week before Parliament’s programming committee is scheduled to vote on the report recommending her removal from office.
To approve the report, Parliament will require a two-thirds majority.
This report follows a year-long inquiry by the Section 194 committee, which found Mkhwebane guilty of misconduct.
On the same day that Parliament will vote on the report, there will also be a vote on the appointment of the new Public Protector.
An ad hoc committee, led by Cyril Xaba, has recommended that acting Public Protector Kholeka Gcaleka assume the role of the next Public Protector.
However, this recommendation has been met with resistance from various parties, including the EFF, DA, Freedom Front Plus, and others, who have raised concerns about Gcaleka’s suitability for the position.
Meanwhile, the Office of the Public Protector said Mkhwebane’s suspension remains effective despite her intention to return to work on Tuesday.
“The institution acknowledges the importance of the subject matter and hereby advises that the Public Protector is not an employee of the PPSA. The Public Protector is appointed to office by the President of the Republic of South Africa.
“The Section 194 Committee enquiry is a Parliamentary process, and the PPSA is not a party thereto. Accordingly, in the absence of communication emanating from the President, Adv. Mkhwebane’s suspension remains effective,” it said.