File photo: Public Protector, Advocate Busisiwe Mkhwebane during the Section 194 Impeachment Inquiry into her fitness to hold office in Parliament on May 08, 2023 in Cape Town. Photo by Brenton Geach/Gallo Images via Getty Images
The National Assembly on Monday voted 318 to 43 to remove suspended public protector Busisiwe Mkhwebane from office, just weeks before her seven-year term expires in mid-October.
The step was, as expected, opposed by the Economic Freedom Fighters (EFF), the United Democratic Movement (UDM), the Pan-Africanist Congress (PAC), African Transformation Movement (ATM) and Al Jama-ah but the resolution carried with ease thanks to the combined strength of the ANC, the Democratic Alliance and several small parties.
Qubudile Dyantyi, the ANC MP who chaired the fractious section 194 inquiry into her fitness to hold office, said it was the most scrupulously thorough investigation parliament had conducted since the advent of democracy in South Africa in 1994.
The committee found evidence that not only sustained the main charges of misconduct and incompetence against Mkhwebane, but also brought to light more missteps in the course of critical investigations.
“Ours was not an enquiry which rubber-stamped the findings of the independent panel or the courts,” Dyantyi said, referring to the high level panel that concluded in early 2021 that found there was cause for an impeachment process.
Headed by former constitutional court judge Bess Nkabinde, the panel found prima facie evidence of repeated misconduct, or at least gross negligence, on Mkwebane’s part in the court rulings overturning her reports in the most scathing terms.
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.
Dyantyi stressed that the committee “heard hundreds of hours of testimony” before resolving in a report drafted in July that the charges were sustained.
“Where we have established misconduct and incompetence, we are confident that advocate Mkhwebane did not raise any valid defence for her conduct to sway us,” he said.
“In fact, the enquiry unearthed even further examples of misconduct and incompetence that had this committee not adduced evidence in the manner that it did, would have never come to the fore.”
The committee heard startling evidence that EFF chief whip and deputy president Floyd Shivambu gave a copy of a classified report of the office of the inspector-general of intelligence (OIGI) on the South African Revenue Service (Sars) to the public protector.
Mkhwebane never admitted to having the document when her report, which concluded that now Public Enterprises Minister Pravin Gorhan had allowed a “rogue” intelligence unit to be established within the revenue service, was taken on review in the high court.
The high court found that she had allowed her office to be used “to resuscitate a long-dead fake news propaganda fiction” and that she had been dishonest about having a copy of the OIGI report but the evidence of her former colleague, Ponatshego Mogaladi, before the inquiry shed more light on what had transpired.
ANC chief whip Pemmy Majodina said Mkhwebane had eroded public confidence in a crucial chapter 9 institution in the manner in which she had mishandled high level investigations.
“The inadequacies in the Vrede investigation and the exercise of the lifeboat [Bankorp-Absa] investigation both of which caused serious harm, are such that they would have destroyed a reasonable member of the public’s confidence in her ability to discharge her duties and functions.”
In the Vrede investigation, the committee heard, Mkhwebane was deaf to repeated pleas from senior staff members to consider reports that the Gupta family had pocketed millions from the Vrede dairy farm project in her investigation into the scam.
She notably made no findings against politicians and again the report was set aside by the high court.
But members of the EFF, UDM, PAC and ATM argued on Monday that removal was Mkhwebane’s punishment for refusing to do the bidding of the ruling elite.
“If you are in public service and you don’t toe the line of the ruling party, the party will embarrass and chase you out of office,” said ATM leader Vuyo Zungula.
“Never has it happened anywhere in the world that a sitting ombudsman is removed, especially after finding against the powerful president and minister. Who is next in this brutality?
“This action is clearly set out to make independent chapter nine institutions to work in fear. It is either you rule in favour of the most powerful sections of society or you will be punished.”
UDM leader Bantu Holomisa said Mkhwebane committed the sin of doing her job too thoroughly.
He added that she had brought to light crucial information on money that flowed into the CR17 campaign for President Cyril Ramaphosa’s election as leader of the ANC, after former DA leader Mmusi Maimane laid a complaint to her office. Instead, Holomisa suggested, both Maimane and Mkhwebane were sacrificed for pursuing the truth.
The PAC’s Mzwanele Nyhontso said the Mkhwebane’s impeachment was a plain case of misogyny.
The impeachment process has taken more than two and half years since then DA chief whip Natasha Mazzone submitted a substantive motion for Mkhwebane’s removal from office in December 2020. It has, her colleague Annelie Lotriet said in the debate on Monday, cost the taxpayer some R160 million.
Freedom Front Plus MP Corné Mulder noted that roughly R36 million was spent on Mkhwebane’s legal fees and accused her lawyer, Dali Mpofu, of displaying contempt for the country’s poor majority by suggesting that the money he charged — in the order of R50 000 a day — was “peanuts”.
Voting on the committee’s report took place by roll call. When his name was called, Gordhan responded by saying “absolutely yes”.
An ad hoc committee has nominated Mkhwebane’s deputy, Kholeka Gcaleka, as the new public protector. Gcaleka is already facing one court challenge to her findings. The ATM has filed for legal review of her report absolving Ramaphosa of wrongdoing in the Phala Phala scandal.