South Africa


Ramaphosa promises ‘rapid release’ of publicly owned land; Mkhwebane goes all alternative facts

(Left) President Cyril Ramaphosa responds to Questions for Oral Reply in Parliament, 22 August 2018, Cape Town (GCIS); (Insert) South African Public Protector Advocate Busisiwe Mkhwebane addresses a meeting in Masiphumelele, Cape Town, South Africa, 05 May 2017. EPA/NIC BOTHMA

Fear and loathing. That was a thing in Parliament on Wednesday. President Cyril Ramaphosa called for the ditching of the “fear psychosis” over land expropriation without compensation; it’s already implicitly allowed in the Constitution, and the governing ANC is committed to land reform for economic growth. Meanwhile, Public Protector Busisiwe Mkhwebane is worried about the loathing dished out to her, particularly by the DA, and started a hard-hitting fightback with a 25-page letter that showcased her curious, unique and sometimes plain wrong take on the law, legal processes and parliamentary rules.

President Cyril Ramaphosa on Wednesday hauled out all the spin to ensure his administration’s messaging on land ploughed forward: there will be expropriation without compensation because it’s key to healing the wounds of past injustice, but all would unfold within the rule of law and the Constitution.

It would start with state-owned land, to be identified for rapid release for site-and-service stands to people wanting to build their own homes in urban areas. That was the outcome of the recent Cabinet lekgotla, said Ramaphosa:

We want rapid release of publicly owned land…”

And land grabs would strictly not be allowed.

We’d like to move away from this fear psychosis,” said the president in reference to AfriForum’s campaigning in South Africa and overseas.

The ANC wants to make sure there is land reform that will lead to growth of our economy, that will increase agricultural production and food security.”

In the polite ANC-EFF toenadering on display in the House, Ramaphosa said it also was time for EFF leader Julius Malema to drop his fear that if people are given title deeds the land would simply be sold.

Julius Malema asked the question:

Do you agree the state must be the owner of the land?”

And Ramaphosa replied:

That is a false fear. Our people who had title deeds… become so proud that finally, in the end they own something they can show and demonstrate with their hands.”

This exchange is the clearest illustration of the policy differences between the two political parties in the months ahead of the 2019 elections, where land will feature large.

In many ways it’s two steps forward and one step back for Ramaphosa, who walks a tricky balancing act of interests, factions and public perceptions and expectations – and not only on land.

Another pressing matter is the rehabilitation of institutions compromised in past years through the appointment of politically pliant leaders. Some steps forward have been taken. The prosecutions boss post is open and waiting for Ramaphosa’s choice. The South African Revenue Service (SARS) inquiry is on and proceeding, as are the disciplinary steps against suspended tax boss Tom Moyane. And now that the State Capture commission of inquiry is under way, Ramaphosa’s administration can concretely claim of moving in the right direction with regards to stamping out corruption.

The one institution that seems to continue teetering on the brink is that of Public Protector Busisiwe Mkhwebane.

It’s complicated, and intricately linked with ANC parliamentary caucus factions – committee chairperson Mathole Motshekga is largely firmly supportive of the public protector, some of his party colleagues not so much; the DA push to have an inquiry into the public protector’s fitness for office after judgments scathing of her behaviour and the role of Parliament in the removal from office of office bearers it recommends for appointment, like the public protector or the commissioners of the Electoral Commission of South Africa (IEC).

DA chief whip John Steenhuisen has been up and down the parliamentary hierarchy since late 2017 – after the first court judgment set aside the remedial action of a constitutional change to the South African Reserve Bank (SARB) mandate as per her controversial report on the R1.125-billion Absa/Bankorp apartheid era bailout.

It had to go all the way to National Assembly Speaker Baleka Mbete, who directed the justice committee to deal with this after a full Bench in February 2018 set aside the report in the review brought by Absa, joined by the SARB, the finance minister and National Treasury.

Eventually in June the justice committee met on this inquiry, but Mkhwebane was a no-show due to a “family emergency”. And while Mkhwebane was present before MPs a week later she briefed on the appointment of her special adviser Sibusiso Nyembe and left before Steenhuisen was finally granted permission to brief MPs on his application for the public protector’s removal from office.

At the end of that committee meeting, it was decided the public protector should respond to Steenhuisen’s presentation – in writing.

Wednesday was the date the justice committee set itself following the 10-week recess to discuss Mkhwebane’s written responses and a possible inquiry. It didn’t quite happen that way.

Instead what emerged was a letter from Mkhwebane, seen by Daily Maverick, arguing that the DA’s dissatisfaction with her appointment was insufficient for her removal from office, particularly as Steenhuisen had failed to show the required level of competence for that to happen.

My performance speaks for itself,” Mkhwebane wrote, pointing out that “only” 12 of her 50 published reports have been taken on review and “none (0%) of my report [sic] has been reviewed and set aside by the court of law”.

All that happened in the Bankorp/Absa court reviews, according to Mkhwebane, was that “only some remedial actions… were reviewed and set aside. My findings… remain unchallenged and are legally binding since my report has not been set aside.”

That’s not quite how the full Bench of the North Gauteng High Court saw it when in its unanimous judgment on 16 February 2018 it set aside all remedial actions – from the appointment of the Special Investigating Unit (SIU) to probe the deal, to monitoring of such a probe by various parties.

Should all the review applications succeed in the reviewing and setting aside of the remedial action, we are of the view that it is not necessary to also set aside the remaining part of the report itself,” the judgment concluded. In other words, because all the remedial action was reviewed, deemed unlawful and set aside, there was no need to additionally also expressly set aside the report itself.

The judges had some scathing remarks about Mkhwebane’s conduct.

It transpired that the public protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice,” said the judgment, later concluding: “We have found that the public protector was biased and the remedial action should be set aside.”

And the court showed its exasperation by ordering Mkhwebane to personally pay 15% of the legal costs. It’s this cost order she’s taken on appeal, eventually succeeding in that the Constitutional Court in late July agreed to permit her direct access. The hearing is set down for 27 November 2018.

Until then the public protector would not make further comments, according to a statement by her office. And that sub judice-therefore-not-up-for-discussion approach was taken also in the 25-page letter to MPs.

Except Mkhwebane quotes the wrong parliamentary rule – there’s been a review and updated rule book – and what once was a ban on discussing matters before court is no longer what guides Parliament, as some officials from State-owned Entities (SoEs) have learnt the hard way.

The currently applicable National Assembly Rule 89 states no MP “may reflect upon the merits of any matter on which a judicial decision in a court of law is pending”.

Important nuance: no MP can pass judgement on whether a matter before court is valid or not, but that does not mean the matter is off limits completely, particularly given that MPs have freedom of speech and can tackle any matter they deem fit to do so under laws, Constitution and rule.

Still, Mkhwebane disagrees.

Any attempt to pre-empt the said appeal processes or to embark on a parallel process to essentially threaten or punish me… is unlawful and amounts to usurpation of judicial authority by members of the committee and National Assembly,” she wrote.

The committee has not been given such dangerous power to be used in a manner that would impair my independence.”

Except the Constitution in Section 194 permits for the removal on grounds of misconduct, incapacity or incompetence after a finding to such an effect by a committee is adopted in the National Assembly with at least a two thirds majority.

But Mkhwebane is arguing there’s no reason except “vengeful action” by some DA MPs, who are ignoring the rule of law, and Steenhuisen’s “unfair attacks on me”.

Arising out of this and the committee’s previous attitude, the public protector wrote, “the National Assembly has adopted procedures which have the effect of undermining the my [sic] constitutional independence, subjecting me to the torture of public condemnation and personal attacks or premature threats of removal based solely on adverse court criticism”.

The justice committee reconvenes next week to discuss Mkhwebane’s written responses – and perhaps actually make a decision rather than continuing playing kick for touch for the post-2019 election Parliament to make a decision. DM


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