Riyaz Patel
The National Assembly (NA) has adopted new guidelines setting out the process for the removal of a head of the so-called Chapter 9 Institutions.
The organisations affected are: the Auditor General; the Commission for Gender Equality; the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; the Electoral Commission; the Public Protector; and the South African Human Rights Commission.
Existing rules of the National Assembly and section 194 of the Constitution, only define broad parameters for the dismissal of office bearers or commissioners in these institutions, and this necessitated Parliament to initiate the process for new rules in this regard.
The new regulations expand on what would constitute the grounds for misconduct, incapacity or incompetence:
- Misconduct means the intentional or gross negligent failure to meet the standard of behaviour or conduct expected of a holder of a public office;
- Incapacity includes a permanent or temporary condition that impairs a holder of public office’s ability to perform his or her work and any legal impediment to employment;
- Incompetence in relation to a holder of public office, includes demonstrated and sustained lack of knowledge to carry out and ability to perform or skill to perform his or her duties effectively and efficiently.
The new rules also provide for any member of the National Assembly to initiate, through a substantive motion, proceedings for a section 194 inquiry.
The National Assembly Speaker must refer the motion and any supporting documents for preliminary assessment to an independent panel. The Speaker must also, without delay, inform the Assembly and the President of this referral.
The three-member panel, of fit and proper South African citizens, must collectively have the necessary legal and other competencies and experience to conduct the assessment.
A judge may be appointed to the panel but the Speaker must make such an appointment in consultation with the Chief Justice.
Political parties represented in the National Assembly must also have had a reasonable opportunity to put forward proposed nominees to serve on the panel.
That committee, with powers applicable to other parliamentary committees, must conduct the inquiry, establish the veracity of the charges and report back to the National Assembly.
The Committee’s report, which must contain findings and recommendations and reasons for these, must be scheduled for consideration and debate with due urgency, given the programme of the Assembly.
If the report recommends that the holder of a public office be removed from office, the question must be put to the National Assembly directly for a vote in terms of the rules and if the required majority of Assembly members support the question, the Assembly must convey the decision to the President.
