/ 2 March 2021

Panel slams Mkhwebane in a report that sets parliament on long road to impeachment

Public protector (PP) Busisiwe Mkhwebane. (Lindile Mbontsi/Foto24/Gallo Images/Getty Images)

Public protector (PP) Busisiwe Mkhwebane was mistaken in thinking that legal review was the answer every time when she erred or was found incompetent. In fact, her removal from office was the appropriate remedy, an independent panel appointed by parliament has concluded.

In a report to the legislature, the panel has pointed to prima facie evidence of repeated incompetence and misconduct on Mkhwebane’s part and recommended that the legislature refer the matter, in terms of section 194 of the constitution, to a committee of the legislature for further investigation.

The recommendation comes a year after Democratic Alliance chief whip Natasha Mazzone submitted a motion to initiate proceedings to determine whether Mkhwebane was fit to hold office.

Former Constitutional Court judge Bess Nkabinde and advocates Dumisa Ntsebeza and Johan de Waal made up the panel that conducted a preliminary inquiry. They handed their 119-page report to parliament late last week after a 60-day extension of its mandate forced by Mkhwebane and the wealth of evidence that they had to peruse.

The panel members mulled four main charges and a “multitude of sub-charges” brought by Mazzone, together with a file of more than 9 000 pages. 

But in the main, the inquiry turned to the most damning of the adverse court rulings Mkhwebane has accumulated since she succeeded Thuli Madonsela in October 2016.

These include the Pretoria high court and the Constitutional Court findings on her 2017 Bankorp-Absa report, the court judgments relating to her report on the Vrede dairy farm scandal and the legal review of her Financial Sector Conduct Authority report.

The panel noted perceptions of bias raised by the courts and Mkhwebane’s failure to disclose that she met with then president Jacob Zuma while arriving at her findings in the Bankorp matter. Her report called for a review of the South African Reserve Bank mandate when Zuma’s allies actively pursued this agenda as the ANC headed to its elective conference at Nasrec.

On the Vrede matter, the panel flagged Mkhwebane’s ignorance of the fact that the public protector has the power to order an investigation by the Special Investigating Unit or the auditor general as an indication of incompetence.

It found further evidence of misconduct or at least gross negligence in her failure to investigate misappropriation of funds and giving the former premier of the Free State, Ace Magashule, the discretion to point out the officials who should be probed for wrongdoing when he was implicated. 

Mkhwebane responded to the preliminary inquiry with more than 1 160 pages of arguments, but the panel concluded that “she does not come close to casting doubt on the findings in the three judgments analysed above”.

It rejected her argument that the courts ruled against public officials on a routine basis.

“The PP seem to be oblivious of the special nature of the office of the public protector. She simply cannot compare herself with ordinary public officials,” the panel noted.

“The PP contends that appeal (she probably means review) is the remedy if she makes a mistake. But this misses the point. In the proceedings before us, the question is not whether the PP is wrong but whether she committed misconduct or is incompetent. 

“Removal, and not appeal or review is the remedy for misconduct or sustained incompetence.”

Mazzone has welcomed the panel’s findings, but impeaching Mkhwebane, who has two-and-a-half years of her term left, is unlikely to be a quick process or a foregone conclusion. The ANC caucus in the legislature is deeply divided, and removal requires a two-thirds majority. Mkhwebane has also enjoyed sustained support from the Economic Freedom Fighters, which holds 44 seats in the house.