/ 22 August 2023

Committee adopts report recommending Mkhwebane be impeached

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Former public protector Busisiwe Mkhwebane. (Leila Dougan/Daily Maverick/Gallo Images)

Parliament’s section 194 committee mulling the impeachment of suspended public protector Busisiwe Mkhwebane on Tuesday adopted a report recommending that she be removed from office for misconduct and incompetence.

The adoption of the report was supported by the ANC, the Democratic Alliance, the Inkatha Freedom Party and Freedom Front Plus. The Good party was absent from the meeting, as was the United Democratic Movement.

The Economic Freedom Fighters (EFF) and the African Transformation Movement strongly disagreed, with the leader of the latter, Vuyo Zungula, arguing that the process was irrational and the report patently biased. 

The EFF reiterated that it believed the report was ripe for legal review. 

“We reject the report with contempt and we stand by our position that we reserve our right to take it on review,” EFF MP Omphile Maotwe said.

Al-Jamaah also declined to support the report, but qualified that it was doing so because it believed the legislature could and should impose a lesser sanction than removal.

The EFF and the ATM’s disagreement stemmed in part from the fact that Mkhwebane failed to provide input on the draft report, which she was given 10 days to do.

Instead, she maintained in a letter sent to the office of the state attorney on 14 August that she was unable to participate in the proceedings of the section 194 process for lack of legal representation. 

She noted that HM Chaane Attorneys had withdrawn as her legal representatives on 3 August, and asked that the state attorney appoint Motsoeneng Bill Attorneys from a list of law firms provided by the office of the public protector to take over the brief.

In a letter dated 20 August, Motsoeneng Bill Attorneys said their new client had been without legal representation for a fortnight, and had therefore been unable to respond to the draft report.

“Unfortunately, and unlawfully, the inquiry proceeded and took a few important steps during that very same period, including but not limited to the purported adoption of a draft report and the nomination of a deadline for her response thereto. It was clearly impossible for her to respond at a time when she was not legally represented. That deadline can therefore not be enforceable.”

The law firm said it would not be able to consult Mkhwebane before Wednesday, and asked that it be given a few weeks to appraise itself of all issues at hand.

“For the time being, we only request that we be granted the space to render our professional services as effectively and quickly as possible by suspending or postponing all the activities of the committee until such time that the legal team will be in a position to render the necessary legal representation within a reasonable period of time.”

Committee chairperson Qubudile Dyantyi asked for the input from members and summed up the overwhelming view as being that Mkhwebane had been sufficiently indulged in the course of the long-running process. 

The committee was established in March 2021 but only held its first hearings in July last year. Mkhwebane challenged the rules of the process in court, and was successful on one count, namely that she be allowed full legal representation in hearings.

She was long represented by Dali Mpofu SC but he withdrew at the beginning of April after the office of the public protector said it did not have the resources to continue paying Mkhwebane’s legal bills. 

Acting public protector Kholeka Gcaleka said at the time that the cost of Mkhwebane’s legal challenges to the impeachment process and the lawyers fees for hearings of the committee had come to more than R26 million for the financial year. 

Mkhwebane’s legal strategy before the committee has been one of delay, marked by demands for both Dyanty and evidence leader advocate Nazreen Bawa to recuse themselves. 

Her seven-year term of office is due to expire in October, and if the process were still ongoing by then, she would be entitled to full benefits.

The committee adopted the report in draft form at the end of July.

It found that the main charges against Mkhwebane were sustained. These included that she misconducted herself in the investigations into the Vrede dairy farm scandal, the Bankorp-CIEX matter, the CR17 campaign and the so-called “rogue” intelligence unit in the South African Revenue Service.

On Tuesday, Dyantyi said Mkhwebane’s response to the request for input on the draft report was an attempt to hold the committee to ransom and to dictate how the process should unfold further.

He noted that AM Chaane Attorneys had been on brief for 63 days before withdrawing, and said the letter from her new attorneys displayed a thorough lack of urgency.

Fellow ANC MP Zola Nqola said the committee would be entitled to regard Mkhwebane’s failure to comment on the report as tacit agreement to the contents. “She has elected not to make use of this opportunity.”

DA MP Benedicta van Minnnen said Mkhwebane had repeatedly resorted to legal theatrics and the process needed to conclude.

Dyantyi concluded: “I hear members saying we have been beyond fair. You have given her an unprecedented audi [hearing], not once, many times, to the PP.

“I do hear the very strong views of the EFF that says we must allow the new attorneys to familiarise themselves. The ATM supports that but goes further to say as far as they are concerned they want to conclude that this process is irrational, is unlawful, and therefore they reject it.

“The majority of members who have spoken are proposing that we do a final adoption of this report.”

ANC deputy chief whip Doris Dlakude said she was moving for the adoption of the report, adding that sufficient fairness had been extended, and the DA’s Kevin Mileham seconded this. After the majority of members supported adoption of the report, Dyantyi said it would now be tabled to the National Assembly, where it requires the support of two-thirds of members to be adopted.