End of the road as MPs kick Mkhwebane to the kerb

After more than 1700 days in office, parliament struck a final blow to Adv Busisiwe Mkhwebane as public protector yesterday, bringing to an end her tumultuous tenure best known for scathing court judgments overturning her investigation reports.

Mkhwebane was removed from office by 318 votes of MPs in the National Assembly in support of a recommendation for her impeachment. Only 43 MPs voted in her support and one abstained. She was left with only a month on her seven-year term and has become the first head of a chapter 9 institution to be impeached. 

She could now lose some of her benefits including a portion of her pension believed to be in the region of R8m and R10m according to insiders with knowledge of her perks.

Her booting out came after a recommendation by a section 194 committee, which conducted an inquiry into Mkhwebane’s fitness to hold office. The Section 194 committee said she should be removed on the grounds of incompetence and misconduct in line with the constitution.

Mkhwebane has had a difficult tenure since taking office in 2016, in which she suffered court defeats that overturned several of her reports and recommendations, which eventually led to Parliament starting the process to investigate her fitness to run her office. 

Some of these cases include her investigation into the apartheid-era loan by the South African Reserve Bank to Absa in the 1980s, in which the Pretoria High Court ruled in 2019 that Mkhwebane was biased in her probing of the matter.

In 2019, the same court reviewed and set aside Mkhwebane’s report and remedial action, ruling that she had failed to properly investigate the Gupta-linked Estina dairy project.

The following year the same court rejected her 2018 report into the allegations of maladministration and gross negligent against Police minister Bheki Cele for allegedly failing to protect two whistleblowers from KZN.

Again in 2020, the High Court in Pretoria set aside Mkhwebane’s report that found fault with former South African Revenue Service deputy commissioner Ivan Pillay’s early retirement payout back in 2010.

Lawson Naidoo, the executive secretary of Council for the Advancement of the South African Constitution, described her sacking as a sign of democracy maturing, as parliament was able to hold a person who is accused of gross incompetence accountable.

“She is the first person in the democratic era to be removed from office in this way….

“The next public protector is going to have their work cut out to restore public confidence in the institution,” said Naidoo.

He said Mkhwebane’s legacy was negative through her conduct, which saw her bringing the office of the public protector into disrepute.

The Section 194 committee in July found Mkhwebane had handled the investigation into CR17 in an incompetent manner. CR17 was a reference to President Cyril Ramaphosa’s campaign to become president of the ANC in 2017.

Evidence leader Adv Nazreen Bawa SC told the committee that Mkhwebane had relied on the wrong act and an outdated ministerial handbook when she investigated Ramaphosa’s donations during the campaign.

The Constitutional Court in July 2021 had ruled that the Public Protector Act did not allow Mkhwebane to probe matters relating to political parties.

The committee has also agreed that a charge of misconduct and incompetence relating to the victimisation of staff in her office was sustained.

The DA’s Glynnis Breytenbach said Mkhwebane’s impeachment was a strong demonstration that SA’s constitutional democracy was working.

“Ms Mkhwebane was a woeful public protector. Many courts, including the Constitutional Court, found that she had a tenuous grasp of the law and the constitution. It signifies that heads of chapter nine institutions must honour their constitutional mandate, or face removal,” said Breytenbach.

Dr Benni Lekubu, a justice, fraud and corruption expert from the University of SA, said Mkhwebane had left a legacy of being “fearless when tackling people holding the highest office in the land”.

“There are many court cases that Mkhwebane has lost and one of the worries I have always had was her advisors. Your advisors must be able to sit with you and tell you that this [case] we can do and this one we are not able to do,” he said.

“When she was appointed… the national assembly found her to be competent… at a later stage when there are squabbles, when they start feeling the heat, some of them decide that she is not competent anymore, but you are the same people that appointed her. That’s a bit of a contradiction.” 

Rhodes Business School head, Prof Owen Skae, said Mkhwebane would be remembered for tarnishing the reputation of her office of public protector and losing one court case after another.

Skae said the impeachment against Mkhwebane showed that when faced with a common adversary, most political parties are in agreement, adding that it suggests that members of parliament do not always vote on principle.

He said Mkhwebane’s successor had a mammoth task of restoring the credibility of the office.

The EFF slammed the process as “grossly unfair” to Mkhwebane and nothing more than a vindictive political witch-hunt against her. “Here today, we see parliament being used to break the law to protect the powerful,” said EFF MP Omphile Maotwe.

She said the process was hurried and had ignored basic principles of fairness that are normal and ought not to be negotiable. Maotwe indicated that the EFF reserved the right to take the report and its adoption by parliament on judicial review. 

ATM’s Vuyo Zungula said the action would do more harm than good for the country.

“Mkhwebane’s removal will be a victory for some politicians but not necessarily for the integrity of the systems. We feel procedurally and morally obliged to vote for the impeachment of Adv Mkhwebane though we don’t celebrate doing so,” he said.

Good Party’s Brett Norton Herron said Mkhwebane’s legal strategy not to respond to evidence placed before her at the enquiry denied the country the opportunity to hear her perspective.