Public protector Busisiwe Mkhwebane has 10 days to give reasons to President Cyril Ramaphosa about why he should not suspend her.
The presidency confirmed this in an early morning statement on Friday.
Ramaphosa made the decision following National Assembly speaker Nosiviwe Mapisa-Nqakula‘s confirmation that the parliament’s section 194 enquiry committee had resolved to continue with its consideration of the motion for the removal of the public protector.
The presidency’s office said that section 194(3)(a) of the Constitution allowed Ramaphosa to suspend a public protector, auditor-general or a member of a commission established in terms of Chapter 9 of the Constitution at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person.
In a statement responding to the president, Mkhwebane said she would be consulting with her legal team first thing Friday morning to map a way forward.
She also alleged that the process against her was rushed. Mkhwebane claims that she learnt about parliament’s decision to continue with its impeachment process from the media.
“The public protector would like to assure stakeholders that she continues to discharge her powers and functions as envisaged in the Constitution without fear, favour or prejudice and that all 18 service points of her office remain fully operational.
“In addition, the public protector wishes to assure stakeholders that while she is not averse to being held to account, she will always seek to ensure that the work of the office of the public protector is not unduly and unlawfully disrupted. Contrary to the prevailing narrative, all she has ever asked for is a fair section 194 process,” she said in the statement.
In March last year, Parliament adopted the report of a senior panel recommending a section 194 inquiry be initiated to consider removing her from office for misconduct and incompetence.
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 governing ANC.
Former constitutional court judge Bess Nkabinde and advocates Dumisa Ntsebeza and Johan de Waal sat on the panel that conducted the preliminary inquiry. They handed their 119-page report to parliament late last week after a 60-day extension due to a wealth of evidence that had to be perused.
The panel mulled four main charges and a “multitude of sub-charges” brought by DA MP Natasha 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 has put parliament on notice that she is filing for rescission of the constitutional court ruling that paved the way for MPs to commence a process to impeach her. In that ruling, the apex court put an effective end to her legal challenge to the rules governing the impeachment inquiry as unconstitutional.
It is expected that she would rely on rule 42 of the Uniform Rules of Court, the same provision Zuma invoked unsuccessfully when he sought to have his conviction for contempt of court rescinded.