The case against Mkhwebane

The Democratic Alliance (DA) will on Wednesday morning present its case before Parliament’s justice portfolio committee as to why public protector Busisiwe Mkhwebane should be removed from office.

Following several questionable reports and a damning court judgment, DA chief whip John Steenhuisen made the request to the committee that she be axed. This week he added Mkhwebane’s report on Western Cape Premier Helen Zille’s colonialism tweets to her list of transgressions.

“It is on the basis of her fundamental misunderstanding of the basic principles of the Constitution and her own powers that her findings against the premier of the Western Cape, Helen Zille are now part of this growing list of abject findings by her,” he said in a statement on Tuesday.

The DA will likely bring up the following strikes against her name:

Bankorp

In June last year, Mkhwebane directed the Special Investigating Unit to set about recovering R1.125-billion in misappropriated public funds from Absa.


This order followed a 2010 complaint alleging that government had failed to implement the Ciex report ― a report that fingered Bankorp for benefiting from an apartheid-era bailout from the Reserve Bank. Mkhwebane later agreed with the assertion that Absa benefited from those funds after purchasing Bankorp.

The high court in Pretoria in February did not agree, however, and slammed the public protector in a severe judgment, labelling her as biased.

“The public protector did not conduct herself in a manner which would be expected from a person occupying the office of the public protector,” it found. “She did not have regard thereto that her office requires her to be objective, honest and to deal with matters according to the law and that a higher standard is expected of her.”

“Having regard to all these considerations, we are of the view that a reasonable, objective and informed person, taking into account all these facts, would reasonably have an apprehension that the public protector would not have brought an impartial mind to bear on these issues before her.”

READ MORE: Public Protector’s ABSA bailout report set aside

Reserve Bank 

In August 2017, the South African Reserve Bank won its application to have the public protector’s remedial action to change its constitutional mandate set aside.

The judgment came a few days before the deadline for the Reserve Bank and Parliament to respond with an action plan to implement Mkhwebane’s remedial action. The Pretoria high court ruled that the submission of the action plan be set aside.

Mkhwebane was ordered to pay the costs for the application up to and including the filing of her answering affidavit.

During the hearing at the start of August, the Reserve Bank opposed Mkhwebane’s order, which came from a report based on an investigation into the Bankorp bailout during the apartheid era.

Based off of the report, Mkhwebane ordered the bank to change its mandate to ensure the socio-economic well-being of citizens and to achieve socio-economic transformation.

The bank opposed this remedial action saying that changing its mandate falls outside the powers of the public protector.

The website of the Reserve Bank states that its mandate is to achieve and maintain price stability in the interest of balanced and sustainable economic growth in South Africa.

During the hearing, counsel for the Reserve Bank, David Unterhalter SC, argued that the Public Protector misunderstood the role of the Reserve Bank.

“The public protector has simply failed to appreciate the true role of the Reserve Bank and why it plays a critical role in maintaining financial stability and why it is critical to the economic welfare of South Africans,” he said.

READ MORE: SA Reserve Bank wins court bid against Public Protector

Zille tweets

Mkhwebane released seven reports on Monday afternoon, the headliner being findings into Zille’s 2017 tweets that questioned whether colonialism had been all bad. She found the Western Cape premier “divided society on racial grounds” and should be held accountable for her actions. 

READ MORE: Mkhwebane: Zille must be held to account for colonialism tweet

“The premier felt it was her right to tweet like that because in terms of the Constitution she has freedom of expression,” the public protector said at the release of the reports. “That was her view ― that there is nothing wrong which she has done.”

Since it’s release, however, Mkhwebane has been taken to task by various law experts for what they believe is a misinterpretation of the Constitution. Pierre de Vos for instance, writing in his legal blog Constitutionally Speaking, argued that her position does not give her the authority to probe breaches of the Bill of Rights.

He said: “No public protector has ever attempted to rule that a member of the executive has breached a constitutional right and there is a good reason for this: the Public Protector does not have the power to make such a ruling as such investigations are beyond the jurisdiction of her office.”

In his Tuesday statement, Steenhuisen said the party, while not defending Zille, would challenge the constitutional reasoning utilised by Mkhwebane.

“We have never condoned the content of Ms Zille’s tweets. However, this ruling has profound constitutional implications which speak to Adv Mkhwebane’s fundamental misunderstanding of the powers of the public protector.

“The DA will fight to protect this vital constitutionally established institution and ensure that its integrity is restored by removing Adv Mkhwebane.”

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Luke Feltham

Luke Feltham runs the Mail & Guardian's sports desk. He was previously the online day editor.

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