South Africa

Parliament

Busisiwe Mkhwebane stresses she’s a grassroots defender during parliamentary briefing but questions remain

Busisiwe Mkhwebane stresses she’s a grassroots defender during parliamentary briefing but questions remain
Public Protector, Busisiwe Mkhwebane. (Photo: Leila Dougan)

A ‘refuge for the marginalised’ and the grassroots, is how Public Protector Busisiwe Mkhwebane described her office. After court defeats in several highly politicised matters – from CR17 campaign funding to SA Reserve Bank independence – it was a decidedly different turn before Parliament’s justice committee. But questions remain.

“We remain a place of refuge for the marginalised. We have been entrusted with well over 60,000 complaints and finalised more than 40,000 of those…” Public Protector Busisiwe Mkhwebane told parliamentarians. “As an institution, we would want to show the committee how we will use the budget … for the grassroots of our society.”

That grassroots was defined as “the communities found in squalid, overcrowded, semi-urban dwellings that we call informal settlements or slums, in the farms, in the hostels, in the rural villages and townships”. Complaints from these communities make up 95% of the public protector’s cases.

And the public protector’s free service against the generally prohibitive costs of litigation provided the marginalised and grassroots, as the presentation put it, the “best bet at vindicating their rights and we do vindicate their rights time and again”.

Or as Mkwhebane told MPs: “The grassroots can never afford litigation against an organ of state, which has short-changed them”.

However, during the three-hour briefing, it emerged that the Office of the Public Protector is referring complainants back to the department, or state entity that’s being complained about if it’s determined not all departmental complaints procedures had been exhausted.

The briefing document to the justice committee put it like this:

“Accordingly, where a complainant has not exhausted available remedies such as these in-house complaints handling avenues, we will refer their complaint back to those avenues and monitor the situation to avoid a recurrence of the same complaints … 

“We will be working closely with the Department of Public Service and Administration to ensure that every government department establishes such a (complaints) unit within its organogram.

“This way, we will be putting power in the hands of the people. Not only will they know their rights, they will also be in a position to hold their leaders to account and become their own liberators.”

Deputy Public Protector Advocate Kholeka Gcaleka told MPs “work is done to assist departments to get their systems (working)”, also with the Forum of South African Directors-General (Fosad). Already, Home Affairs is working closely with the public protector’s office.

Parliamentarians did not ask any questions about this approach by the public protector who, according to Section 182 of the Constitution has the power “to investigate any conduct in state affairs, or in the public administration in any sphere of government that is alleged or suspected to be improper or to result in any impropriety or prejudice”.

But MPs did ask about the money. For litigation, for personal cost orders and, overall, the running of the office.

Mkhwebane confirmed that a personal cost order had been paid after DA MP Werner Horn asked about the crowdfunding initiative.

“The public paying for my cost because I was doing public work … I only informed the people, who were collecting the money how much … R260,000 and it has been paid.” And with thanks, that’s all Mkhwebane said she could say.

And while litigation was flagged as a risk to the budget of the public protector’s office, no rands and cents number was obvious. Nor was one provided to MPs when they asked.

“I must indicate as the institution, our budget for litigation, actually we are not budgeting specifically for that. That falls under goods and services,” said Mkhwebane. The goods and services allocation is R72.66-million, including (unspecified) contractual obligations of just over R60.7-million.

Instead, the public protector said her office had done its own research on how much others were spending on litigation, because it was wrong to create the perception that only the public protector’s office faced legal action. That research found police spent R300-million on litigation in the 2018/19 financial year, the Special Investigation Unit (SIU) R21-million, up from R7-million as Mkhwebane pointed out, and Justice had spent R1.8-billion on litigation. 

The Justice expenditure would include the State Law Advisors who provide legal services across government, as ANC MP Richard Dyantyi subsequently pointed out.

Unlike interactions over monies with former public protector, Thuli Madonsela, MPs were supportive of Mkhwebane’s argument for more money.

R57.6-million, or 17%, is set to be slashed from the just over R341-million allocation as part of the Covid-19 pandemic-related financial rejig across government.

Mkhwebane said she’d written to National Treasury to prevent any cuts. If the money was cut, the public protector’s office would not be able to do its job. Actually, more money was needed – at least R53.19-million for the 2020/21 financial year.

 

And while cost orders and litigation were raised, not a word on Parliament about the steps in the process to look into removing Mkhwebane from office that’s been underway since February 2020.

 

That money was needed to fill critical posts (R16.6-million), subject matter experts (R10-million), insurance for newly acquired vehicles (R100,000), insurance for servers (R350,000), fuel (R100,000) and security for offices other than head office, at R6.1-million.

Another R15-million is needed for the case management system, and just over R266,000 is needed for employee wellness as the presentation put it “critical considering the current pandemic”.

Discussions with National Treasury were still ongoing, said Mkhwebane. 

Accompanied by an acting chief executive officer and an acting chief financial officer – the chief operations officer is also acting, with five employees suspended pending disciplinary proceedings – Mkhwebane interacted with parliamentarians for just over three hours.

And while cost orders and litigation were raised, not a word on Parliament about the steps in the process to look into removing Mkhwebane from office that’s been underway since February 2020.

An argument could be made that, strictly speaking, this was a justice committee oversight meeting on the Office of the Public Protector’s annual performance and strategic plans and budget allocations.

Questions remain about whether it’s not just an artificial separation, given that the head of the Chapter 9 institution supporting democracy, who had come to account for its performance, strategic and budgetary plans, also faces proceedings that could end in the removal from office.

And there are financial implications. After all, money was spent preparing for interdict proceedings against Parliament on the back of rather terse correspondence to National Assembly Speaker Thandi Modise (ANALYSIS: Public protector’s parallel universe and spin — a reality check by fact and timeline), talking of bias and unconstitutionality.

Ultimately, in late March 2020, the court proceedings were postponed until further notice in an order of the Western Cape High Court. On 23 March, an official Parliament statement (Motion for Removal of Public Protector from Office to Be Processed on Resumption of Business by National Assembly), announced this agreement, adding: “The Speaker of the National Assembly will process the motion tabled by the Chief Whip of the Democratic Alliance for the removal of the Public Protector from office when the Assembly resumes its business.”

After a Covid-19 hard lockdown suspension, Parliament has been back for a couple of weeks. “The coronavirus cannot be held up as an excuse and the removal proceedings against the public protector should, therefore, continue without any further delays,” said DA Chief Whip Natasha Mazzone in a statement on 6 May 2020.

That next step in the process approved in late February 2020, is the establishment of a panel of experts to look into whether the public protector has a case to answer. If yes, there will be an ad hoc committee of Parliament to pursue the matter.

It’s potentially a long process and one that can be kicked for touch, if the prevailing politics of that day so require.

On Saturday, Mkhwebane told MPs how last month she had passed the midterm mark of her seven-year non-renewable term of office. DM

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