Mkhwebane moves to halt ‘grossly unfair’ impeachment process

The public protector has written to the speaker of Parliament Thandi Modise to say that the rules adopted by Parliament for her possible impeachment are unconstitutional and unlawful. 

At a press briefing on Tuesday, Busisiwe Mkhwebane also commented on a Sunday Independent report that her tax affairs were being audited by the South African Revenue Service (Sars), saying she was concerned about an apparent “abuse of state institutions to settle scores”.

An application to trigger an impeachment process against Mkhwebane was approved by Modise on Friday. Mkhwebane said on Tuesday that she had asked Modise to temporarily suspend the “grossly unfair process”, adding that she hoped it would not end up going to court.

“I am, however, concerned about what appears to be an abuse of state institutions to settle scores…

Mkhwebane said the rules were unlawful because they breached the duty on organs of state to protect the independence of her office. They also did not adequately provide for the principle of audi alteram partem, or the duty to hear both sides, and they did not provide the recusal of “a number of seriously conflicted parties”.

Conflict of interest

“There are several parties, both in the executive and the legislature, who are currently or have recently been the subjects of investigation,” said Mkhwebane. 

These included the Democratic Alliance, which initiated Friday’s application. She said that members of Parliament’s justice committee had also “publicly pronounced and passed judgment on the very issues which reportedly form the subject of the complaint by the DA”.

“I liken this to a situation where a judge, magistrate or arbitrator condemns someone and is later expected to conduct a fair trial of the very person,” she said.  

In response to a question, Mkhwebane said that it was important that the rules were lawful and the process was fair: “Let’s do things the proper way; let’s not do things just to deal with Busisiwe Mkhwebane.”

Commenting on the Sars audit, Mhkwebane said she was a law-abiding citizen who paid her taxes. “I am, however, concerned about what appears to be an abuse of state institutions to settle scores. It is a well-known fact that I have conducted and continue to conduct investigations that have not gone down well with certain sections of society. Some of those matters involve Sars.” 

Mkhwebane also said she had refused to give a warning statement to the Hawks, which are investigating a complaint of perjury against her. In August, nongovernmental organisation Accountability Now laid a perjury complaint with the police after the Constitutional Court found that she had been dishonest in the course of litigation.

Mkhwebane said: “I refer a lot of serious matters of criminal nature to the Hawks. Such matters hardly ever receive attention and yet there seems to be a prioritisation of trivial matters such as the one in question, which can under no circumstances be referred to as priority crime.”

She said section 5(3) of the Public Protector Act provides that she cannot be held liable for what is in her reports or what she says “in good faith and submitted to Parliament or made known in terms of this act or the Constitution.”

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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