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Mkhwebane impeachment: Removal proceedings haven't begun yet, Mpofu tells court

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Mkhwebane impeachment: Removal proceedings haven't begun yet, Mpofu tells court

Suspended Public Protector Busisiwe Mkhwebane
Suspended Public Protector Busisiwe Mkhwebane

25th July 2022

By: News24Wire

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Impeached Public Protector Busisiwe Mkhwebane's legal counsel, advocate Dali Mpofu SC, argued in the Western Cape High Court on Monday that the parliamentary committee that will determine whether she should be removed from the office, is not a removal committee.

This is one of the grounds for Mpofu's argument of why President Cyril Ramaphosa shouldn't have suspended Mkhwebane.

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A full bench of the Western Cape High Court heard Mkhwebane's application to declare her suspension, and the parliamentary proceedings, unlawful and unconstitutional.

Section 194 of the Constitution allows the president to suspend a Public Protector once a committee for her removal has started its work.

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According to Mpofu, this work hasn't started. The Section 194 Committee, which started its work two weeks ago, isn't the committee the Constitution envisaged, Mpofu claims.

Judges LG Nuku and M Francise - who heard the matter with Judge JD Lekhuleni - needed some convincing. 

Judge Nuku said the Section 194 Committee was "the only committee" involved in the process.

Mpofu responded, "Tough luck."

Judge Nuku: "But that's not how you interpret the Constitution.

"On your submission the proceedings could never start."

Mpofu stuck to his guns, saying there could be no doubt that another committee was envisaged.

Judge Francis said the Section 194 Committee would make a finding on Mkhwebane's removal, and that committee is the same as the one the Constitution refers to.

Francis said context mattered.

"Then I don't know the meaning of the words 'committee for the removal'," Mpofu replied.

In March, National Assembly Speaker Nosiviwe Mapisa-Nqakula sent a letter to Ramaphosa, informing him that the Section 194 process was continuing. A week later, Ramaphosa sent a letter to Mkhwebane, asking her for reasons why she shouldn't be suspended.

Another of Mpofu's arguments is that it was unlawful for the speaker to send a letter to the president.

"Where did the speaker derive the power to write that letter? I'll answer it quickly: Nowhere!" he said.

According to Mpofu there is nowhere where it says that the speaker must write to the president, prompting him to suspend an office bearer.

"Why would a speaker do this?"

Mpofu also raised these arguments during Mkhwebane's impeachment hearings.

He will continue his arguments into Monday afternoon. Tuesday has also been set aside for the hearing.

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