/ 17 March 2021

Impeachment inquiry against public protector initiated

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

It was predictably fractious, but in the end the National Assembly convincingly adopted the report of a senior panel recommending a section 194 inquiry be initiated to consider removing public protector Busisiwe Mkhwebane from office for misconduct and incompetence.

Section 194 of the constitution allows for the impeachment of Chapter Nine institution heads. The public protector, along with the South African Human Rights Commission, the Commission for Gender Equality, the office of the auditor general and the Independent Electoral Commission, among others, make up South Africa’s institutions that were established to safeguard democracy. 

Tuesday afternoon’s vote needed a simple majority of 201 but passed with 275 after the ANC majority towed the party line, after an 11th-hour caucus meeting followed by a meeting at Luthuli House.

Given the ruling party’s dominance it came down to whether ANC chief whip Pemmy Majodina could deliver an ANC vote unmarred by caucus rebellion. The rebellion was averted and the ruling party came in at 168 votes.

This means, however, that 62 members of the ANC dropped out of the online vote, some possibly because of load-shedding. No ANC members formally declared that they were opposing the report after Majodina made a declaration saying the party supported it.

Democratic Alliance (DA) chief whip Natasha Mazzone said she would ask for an account of how the ruling party voted on a report that stemmed from a motion she filed more than a year ago. The DA has called on President Cyril Ramaphosa to suspend Mkhwebane pending the completion of the parliamentary process.

The panel found prima facie evidence of incompetence and misconduct on the part of Mkwebane, evidenced in a raft of court judgments overturning her findings, most of which appeared tailor-made in service of the so-called RET (radical economic transformation) faction within the ruling party.

The ANC’s top six held a meeting on Monday at which it was decided that ANC national chairperson Gwede Mantashe — together with secretary general Ace Magashule — must quell growing tensions in the party caucus emerging from the imminent vote on whether Mkhwebane’s fitness should be investigated by parliament.

Speaker Thandi Modise told Economic Freedom Fighters chief whip Floyd Shivambu he was not raising a point of order as he rose to contest the vote as illegitimate and demanded it be halted.

“Take your seat or I will put off that mic,” Modise said.

Modise will now begin the formal process for composing a committee to consider the report and eventually make recommendations to the National Assembly on whether Mkhwebane must be removed. This step would require a two-thirds majority.

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

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

The preliminary inquiry turned to the most damning of adverse court rulings Mkhwebane has accumulated since succeeding 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. 

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 public protector seems 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 public protector 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 public protector is wrong but whether she committed misconduct or is incompetent. Removal, and not appeal or review, is the remedy for misconduct or sustained incompetence.”