South Africa


Public Protector’s possible impeachment inquiry may take years of stroll down a potholed road

Public Protector Busisiwe Mkhwebane in the dock at the Pretoria Magistrates’ Court on a charge of perjury. The case has been postponed to 25 March 2021. (Photo: Shiraaz Mohamed)

Public Protector Busisiwe Mkhwebane has a case to answer on counts of misconduct and incompetence. That is the recommendation of the panel of three independent experts to Parliament. It’s now up to the national legislature to run with it.

It’s unprecedented — and it will set in motion intricate political manoeuvring in Parliament before a session of the House that will make a final decision on establishing the impeachment inquiry into Public Protector Busisiwe Mkhwebane — officially a Section 194 inquiry. 

The EFF’s support for the Public Protector is on public record and its 44 MPs may well vote against establishing an inquiry into her fitness for office. 

The ANC is split along factional lines and for more than a year has procrastinated on making a decision on the Public Protector. Or as ANC Deputy Secretary-General Jessie Duarte put it after the first 2020 ANC parliamentary caucus of its 230 MPs in February of that year, “There is a process in place. The ANC has not discussed where we stand, so we can’t give you an answer either way”. 

On Monday that moment for a decision finally came; the initial ANC parliamentary caucus response was “No comment”. 

The DA has welcomed the independent panel’s recommendations. 

“We are pleased by these findings and urge Parliament to institute the removal proceedings against Mkhwebane without delay,” said a statement from DA Chief Whip Natasha Mazzone, who some 14 months ago laid the formal complaint against Mkhwebane. 

On Tuesday the Office of the Public Protector said it had noted the independent expert panel’s report to Parliament.

“The report is a pronouncement on the alleged existence of prima facie evidence against the Public Protector and not findings of wrongdoing,” said the official statement. “The Public Protector is confident that both the parliamentary process and the judicial proceedings, which are before the High Court and the Constitutional Court, will ultimately result in her being cleared of any alleged wrongdoing.”

The independent expert panel report is step four of 17 steps in a Section 194 inquiry, named after the section in the Constitution dealing with the removal from office of the heads of institutions established to support democracy. The last step in such impeachment proceedings would be a vote in the National Assembly on the inquiry committee’s recommendation — a removal recommendation would require the support of a two-thirds majority in the House

None of the steps in this process has any timeframes or deadlines — it’s possible even if the Section 194 inquiry gets under way, it could be a drawn-out process. Mkhwebane, who became Public Protector in October 2016, has just over two-and-a-half years to go in her seven-year, non-renewable term of office. 

In parliamentary politics, processes can be used to accelerate or to stall. So even if the governing ANC decides that on the back of the independent expert panel’s report to back an impeachment inquiry, the tools from something as basic as coordinating diaries are there to draw out the processes.

Such machinations unfolded in public for more than two years in two ad hoc committees on the Nkandla saga. Ultimately, the National Assembly was found in March 2016 to have acted “inconsistent[ly] with the Constitution”, and unlawfully, by the Constitutional Court for absolving then-president Jacob Zuma from any repayments for his Nkandla homestead upgrades, including the cattle kraal, chicken run, swimming (fire) pool and amphitheatre as the Public Protector’s remedial action ordered. 

Having misread the public outcry from dinner tables to taverns over the Nkandla debacle, the ANC was punished in the 2016 local government elections, losing control of the Tshwane, Johannesburg and Nelson Mandela Bay metros. In other towns such as Rustenburg in the platinum belt, the ANC had to go into coalition to stay in control. 

2021 is another local government year and the ANC faces another political pickle in its factionalised internal politics over the Mkhwebane impeachment recommendation 

The next step in the process is for National Assembly Speaker Thandi Modise to schedule the report on to the Order Paper. Thursday’s programming committee may signal such a session. “The scheduling would be done at the appropriate time,” said Parliament spokesperson Moloto Mothapo. 

If the ANC uses its majority, alongside the EFF, to vote against the independent panel’s recommendation that Mkhwebane has a case to answer, that’s the end of the impeachment road. 

Only if the House, with a simple majority of 50 plus one, decides to adopt the independent expert panel report, will a Section 194 inquiry begin. That inquiry committee will be a multi-party committee, but the ANC, as the majority party in Parliament, will hold the majority of seats and will thus be able to direct proceedings. 

In a twist, if the impeachment inquiry is approved, Mkhwebane could face suspension in line with Section 194(3) of the Constitution. Modise must inform President Cyril Ramaphosa of Parliament’s decision and the president may decide to suspend the Public Protector while such impeachment proceedings unfold — however long that may take. 

The panel’s report says it declined the Public Protector’s argument for a discontinuation pending the finalisation of all other court cases Mkhwebane was involved in. That’s because this would effectively freeze the Section 194 inquiry processes — and actually, the Public Protector agreed the panel was well within its rights to conduct its work. 

As far as parliamentary politics go, it’s high stakes. 

But that the cause for such an unprecedented inquiry exists was made clear in the final 66 words of a 116-page report by retired Constitutional Court Judge Bess Nkabinde and advocates Dumisa Ntsebeza and Johan de Waal. 

“In the circumstances, and or the reasons contained in this report, we recommend that the charges of incompetence be referred to a committee of the Assembly as provided for in the NA (National Assembly) rules. 

“In the circumstances, and for the reasons contained in this report, we recommend that the charges of misconduct be referred to a committee of the Assembly as provided for in the NA rules.” 

It wasn’t a case of an odd error of judgment by Mkhwebane here or there, but an accumulation of unforced errors in matters that did not even require expert specialist legal skill. 

The panel found “substantial information” that constituted prima facie evidence of incompetence. 

“… (M)ost glaring of which is the prima facie evidence demonstrating that the PP (Public Protector) grossly overreached and exceeded the bounds of her powers in terms of the Constitution and the PPA (Public Protector Act) by unconstitutionally trenching on Parliament’s exclusive authority when she directed Parliament to initiate a process to amend the Constitution.” 

That related to changing the mandate of the South African Reserve Bank (SARB) in the June 2017 Absa Bankorp report, released at the time of the ANC policy conference where the radical economic transformation (RET) grouping successfully pushed for the nationalisation of the central bank in a resolution adopted at the 2017 Nasrec ANC national conference. 

The Absa Bankorp report was one of at least six the panel relied on for its work. And enough evidence emerged for a finding of “sustained incompetence”, according to the panel: “This suggests an inability to learn from mistakes by adopting a more careful approach.” 

It also agreed sufficient evidence existed for a count of misconduct. This included, in the Absa Bankorp report into the apartheid-era bailout, “failure to reveal she had meetings with the president (Jacob Zuma at the time) and the SSA (State Security Agency)”. 

Or in the report on the Vrede Dairy, linked to the Gupta family siphoning off money, also for the 2013 wedding that had guests land at the military Waterkloof Air Force base, how the Public Protector, “amongst other things, altered the final report and gave the premier (at the time Ace Magashule, now ANC secretary-general), who was implicated, the discretion to determine who the wrongdoers were; the PP removed the referral to the SIU (Special Investigating Unit) and AG (Auditor-General) from the final report and provided an untruthful explanation to the review court as two why this was done…” 

An addendum of three pages details specific counts and includes charges related to Mkhwebane’s report on the CR17 donations that was overturned and declared invalid in March 2020, although the Public Protector went all the way to argue this in the Constitutional Court in November 2020. 

Final Report of the Independent Panel Est i.t.o Na Rule 129u and Sect 194 of Constitution

The independent expert panel was scathing, saying Mkhwebane had confused two anti-corruption statutes regarding money laundering, incorrectly applied the executive ethics code, found “without any basis” that the president had personally benefited and “(failed) to appreciate that she can not direct the NDPP (National Director of Public Prosecutions) regarding prosecutions to be instituted”. 

The panel’s report says it declined the Public Protector’s argument for a discontinuation pending the finalisation of all other court cases Mkhwebane was involved in. That’s because this would effectively freeze the Section 194 inquiry processes — and actually, the Public Protector agreed the panel was well within its rights to conduct its work. 

Much of what Mkhwebane submitted to the independent panel by the end of January 2021 echoed what she had argued, unsuccessfully, in court while trying to interdict Parliament. This included claims of bias and unfairness, the retrospectivity of the impeachment inquiry based on past instances, double jeopardy given the personal cost orders against her and how the Speaker dealt with the initial complaint.

Since early 2020, Mkhwebane has fought off an inquiry into her removal from office on several fronts — in letters to Modise, basically saying the Speaker had failed to protect her and that Parliament in any case did not have the necessary rules in place, and in court where she lost her bid to interdict Parliament in October 2020. 

The Western Cape High Court ruled Mkhwebane had failed to show irreparable harm had been done to her by such proceedings — and instead upheld the public interest and Parliament’s constitutional responsibilities

What happens next is in no small measure up to the ANC. It will set the tone of what Parliament decides to do next — and how the national legislature carries out its constitutional responsibilities. DM


Comments - Please in order to comment.

  • Coen Gous says:

    If parliament have to make a decision, the Zuma-faction as well as the EFF will simply outvote those in favour of impeachment, illustrating how sick the composition of parliament is

    • Dennis Bailey says:

      Agreed, Coen, but it will again be in full-monty before the electorate. Although the majority are fickle and politically naive, this debacle will be another wedge between sides in the political landscape. At some point, the party will implode or divide, perhaps both.

  • Darryl van Blerk says:

    With the assistance of excellent journalism and in the hands of a person of competence and integrity the Office of the Public Protector halted Zuma and company in their tracks and provided the necessary official impetus to fight off state capture. It should also be assisting in the continuing process of clearing the rot out of government yet it is still being run by an obstructionist who is patently Zuma’s pet spook. What a criminal waste of desperately scarce public resources. One has to wonder what it will take for Parliament to do its job?

  • Peter Dexter says:

    When Jacob Zuma was found by the Concourt to have breached his oath of office, our MP’s clearly illustrated in the JZ no-confidence debate, that like JZ, they have don’t understand or care about their oath of office. How many actually vote with their conscience in the best interests of the people of South Africa, rather than those of their party or themselves? I have no faith that the current MP’s have the competence or ethics to rule on a matter as important as this.
    I presume it is a prerequisite that the PP be an advocate? If so why has the Legal Practice Council not removed her? Surely there are now more than adequate grounds?

  • Sergio CPT says:

    As much as I would dearly love to see the back of the highly incompetent and duplicitous PP, who has had a nefarious agenda from day 1 to muddy the waters and thereby prevent justice and accountability from the state capture and RET thieves, I wouldn’t hold my breath. If it up to parliament, the anc and the eff, their dismal and deceitful record is all but clear. Impunity is the order of the day, and shielding/protecting thieving scumbags is their speciality and wont.

  • Con Tester says:

    It’s a virtual certainty that Busizuma Mkhwegupta will escape any adverse consequences for her incompetence and/or partisanship. As is the ANC’s scurrilous, self-serving habit, this can will repeatedly get kicked down the road on various pretexts, and a lot of hot air will be expended on trying to persuade the public that the ANC cares about such matters, rather than just appearances.

    • Gerrie Pretorius Pretorius says:

      The one and only thing that the anc cares about, is staying on to rule (Not govern) the people of SA. By any means. By hook or by crook. (Oh sorry, there is no hook, so crook it is .. )

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