MPs have quasi-judicial responsibilities in the vote to remove the public protector — and should ignore Ace Magashule

09 March 2021 – 15:56 https://spkt.io/e/1641571

Weekend reports and commentary on the instruction from the secretary-general of the ANC to those he imagines are his deployees in the National Assembly refer.

Ace Magashule is not ANC chief whip. He is completely offside to call on ANC MPs to vote blindly against the DA motion that will lead to a process that should result in the public protector being removed from office.

The real chief whip is taking a far more responsible and measured approach, as she should. Parliamentarians’ accountability is to the people of SA. Generally, they exercise oversight in respect of all Chapter 9 institutions. Unusually, their role is a quasi-judicial one in the vote now pending.

Accordingly, the report of the panel of experts led by justice Bess Nkabinde has been furnished to guide MPs on their quasi-judicial responsibilities in the vote. They are required to vote as if (quasi) they are judges (judicial). As the panel is strongly unanimous in its findings on the mountain of damning evidence it considered, there is no wriggle room left for voting rationally to retain the public protector.

Any and every vote at this stage that is against the appointment of the constitutionally required committee to investigate her fitness for office runs the risk of being set aside as invalid on judicial review in the high court.

In casting their quasi-judicial votes, the MPs have a basic responsibility to do so impartially, objectively and rationally, in accordance with the doctrine of legality, which is a part of the rule of law. These considerations are fundamental values in our constitutional democracy. The National Assembly is an organ of state that is also obliged to conduct itself in a manner that is consistent with the constitution. It must ensure the dignity and effectiveness of the courts.

A vote in favour of the retention of the public protector at this stage in the process would make a mockery of numerous court findings, be contrary to the unequivocal panel recommendations, and would accordingly be irrational. As such, votes against the DA motion could be struck down as invalid. Parliament was roasted in court when the swimming pool at Nkandla was magically converted into a fire pool by parliamentarians who followed the instructions of Luthuli House. The vote Ace now requires is irrational.

Due to the unwarranted interference from Magashule in the quasi-judicial work of parliament, it is incumbent on the speaker to ensure the identity of all MPs who vote against the motion, as desired by him, is publicly revealed so the DA can take those voters on review to obtain legal relief setting aside their irrational votes and awarding punitive costs to the DA against each such MP.

They all have to act rationally in a manner responsive to the needs of the people who voted them in to parliament, not those who placed their names on a party list. If they do not, they will not be acting as the quasi-judicial body contemplated by the constitution.

The pending perjury prosecution of the public protector, and the Legal Practice Council investigation of her fitness to be an advocate, ought to keep the members of the National Assembly on track when they cast their votes on the DA motion. A conviction or a well-deserved striking off the roll of advocates would end her term of office as public protector. It is intolerable that persons who lie under oath occupy high office, whether it be as public protector or as advocate of the high court.

Paul Hoffman, SC, Accountability Now