WC leg­is­la­ture ‘un­der­min­ing’ Mkhwe­bane

Weekend Argus (Sunday Edition) - - NEWS - BULELWA PAYI

THE pub­lic pro­tec­tor has re­acted with shock to me­dia re­ports that her re­me­dial ac­tion re­port on Premier He­len Zille’s colo­nial­ism tweets was thrown out of the the Western Cape Leg­is­la­ture.

DA chief whip in the leg­is­la­ture, Mark Wi­ley, dis­missed the re­port on the ba­sis that Mkhwe­bane had mis­un­der­stood the law and that the re­port was not in its ju­ris­dic­tion.

In re­sponse to the DA’s ac­tions, act­ing spokesper­son for Mkhwe­bane, Oupa Se­galwe, said if the re­port was true, then the con­duct of the leg­is­la­ture might amount to “sec­ond-guess­ing” the pub­lic pro­tec­tor in­stead of as­sist­ing and pro­tect­ing her to en­sure the in­sti­tu­tion’s in­de­pen­dence, im­par­tial­ity, dig­nity and ef­fec­tive­ness, as ob­li­gated by the Con­sti­tu­tion.

In a rul­ing last year, the Con­sti­tu­tional Court found in the case in­volv­ing the EFF and other op­po­si­tion parties in­clud­ing the DA and the speaker of the Na­tional Assembly, that the pub­lic pro­tec­tor’s re­me­dial ac­tion re­port with re­gard to for­mer pres­i­dent Ja­cob Zuma was bind­ing.

The parties had ar­gued that the Na­tional Assembly had failed to hold Zuma ac­count­able in the Nkandla project as rec­om­mended by the for­mer pub­lic pro­tec­tor.

“Ba­si­cally what the rul­ing said was that once the pub­lic pro­tec­tor has drawn up a re­port in re­sponse to a com­plaint, you should deal with the rec­om­men­da­tions. It’s not for you to make any shenani­gans,” said a le­gal ex­pert.

Other le­gal ob­servers also noted that the fact that the re­port had been taken on ju­di­cial re­view would have been the sole ba­sis on which the pro­vin­cial leg­is­la­ture would de­lay act­ing on it be­cause the mat­ter was sub ju­dice.

Any de­ci­sion taken be­fore the re­view was fi­nalised might have to be changed based on the out­come. Se­galwe said the pub­lic pro­tec­tor’s re­me­dial ac­tion was bind­ing un­less set aside by a court of law.

The Con­sti­tu­tional Court had also ob­served that the “pub­lic pro­tec­tor would ar­guably have no dig­nity and be in­ef­fec­tive if her di­rec­tives could be ig­nored willy-nilly”.

Se­galwe said Mkhwe­bane be­lieved the leg­is­la­ture had the power and ju­ris­dic­tion to im­ple­ment the re­me­dial ac­tion.

In 2017, Zille tweeted: “For those claim­ing legacy of colo­nial­ism was ONLY neg­a­tive, think of our in­de­pen­dent ju­di­ciary, trans­port in­fra­struc­ture etc.”

Mkhwe­bane found Zille’s con­duct was im­proper in terms of the Con­sti­tu­tion and that the tweet had brought back a lot of pain and suf­fer­ing to vic­tims of apartheid and colo­nial­ism in South Africa.

Zille has taken the re­port on ju­di­cial re­view and lodged pa­pers with the Gaut­eng High court.


Pub­lic Pro­tec­tor Bu­sisiwe Mkhwe­bane’s re­port found He­len Zille’s tweets im­proper.

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