Statement of the ANC Parliamentary Caucus: Processing of the Report of the Independent Panel in terms of Section 194 of the Constitution on the Public Protector

13 March 2021

The ANC Parliamentary Caucus has noted the release of the Report by the Independent Panel on the Public Protector.

At the time of the passing of the Constitution on 10 December 1996, there were a number of matters that required the further work of Parliament, including but not limited to the following Constitutional Clauses;

  • Section 193 of the Constitution empowers parliament to appoint Heads of Chapter Nine institutions.
  • Section 194 of the Constitution provides for the removal of Heads of Chapter 9 Institutions, but requires rules of the National Assembly (NA) to be put in place for the removal of any Head of a Chapter 9 Institution.

Section 194 lay dormant for years until, in a High Court case against the public protector, the judge ruled in favour of the Public Protector that the National Assembly did not have rules in place to remove Heads of Chapter 9 Institutions and directed Parliament to attend to the matter.

The process started in the 5th Parliament under the Rules Committee of the National Assembly and on 28 November 2019 in the 6th Parliament, new rules were published in Parliaments ATC regulating the removal of Heads of Chapter Nine Institutions. The report of the Rules Committee was tabled in National Assembly and adopted by all Political Parties.

In terms of the Rules, which support Section 194, where any political party may submit a motion to be tabled, either in the National Assembly or to the Speaker, the Speaker is required to consider the matter and put in motion a process to determine the merits or demerits of the Motion.

In 2020 a motion for the removal of the Public Protector was submitted by the Official Opposition to the Speaker.

The Rules (Section 129) require that, where there is a motion to remove any Head of a Chapter Nine Institution, a process must be undertaken to establish the veracity of the claim of the Motion based on a clearly defined criteria. This includes an Independent Panel of Judges who conduct a preliminary inquiry and make a finding whether there is any prima facie evidence to support the Motion.

In the case of the Public Protector, the Independent Panel of Judges conducted a preliminary inquiry and reported on 01 March 2021, recommending that there was prima facie evidence to show that the Public Protector had committed misconduct, was incapacitated or was incompetent.

In terms of the Rules of the National Assembly, it is the National Assembly which has to decide to endorse or reject the Independent Panel’s recommendations. If the NA agrees, the matter is then referred to a special Ad-hoc committee for the purposes of an enquiry.

Therefore, the National Assembly will be seized with a process and all that will be required at this stage is to agree on whether to proceed with the enquiry or not. We are not dealing with the merits of the case, whether someone should be removed or not.

In line with how the ANC Caucus deals with important matters, on the 11 March 2021 Caucus held an extensive discussion on the matter and resolved to support the process and acknowledged that we are in a process and are not at this point dealing with the merits or demerits of the case and therefore questions of voting cannot arise at this stage.

Caucus affirmed the Rules of the National Assembly and how they regulate what the Speaker can and cannot do in cases of Heads of Chapter Nine institutions. Caucus further affirmed that only the Chief Whip can pronounce on this matter on behalf of Caucus and no individual is authorized to address the media on such matters.

It has come to the attention of Caucus that there is considerable misunderstanding surrounding the matter of the Independent Panel Report on the Public Protector. The Committee on Section 194 will conduct an Inquiry for fairness and clarity, which will afford the Public Protector an opportunity to clear her name and respond to the wide allegations attributed by Democratic Alliance’s (DA) Motion.

At this stage, the ANC Caucus is very clear, it will be premature to conclude whether there will be voting for retention or against the removal of the Public Protector.

Issued by the Office of the Chief Whip, Hon. Pemmy Majodina


Sinetemba Jakavula
ANC Communications Officer