SECTION 194 INQUIRY ANALYSIS
While Mkhwebane’s spell in office draws to a close one way or another, search begins for her successor
With just over four months to go in suspended Public Protector Busisiwe Mkhwebane’s term, grinding down her impeachment inquiry by litigation and legal funding seems to have paid off. Some 40 months into the process, it now overlaps with the start of the search for her successor.
It’s a bit of a numbers game. Suspended Public Protector Busisiwe Mkhwebane’s constitutional non-renewable seven-year term ends on 14 October. The National Assembly returns from its mid-year constituency recess on 28 August.
That would be the first date MPs could consider a report from the Section 194 committee on Mkhwebane’s fitness for office, a process that started in mid-July 2022 with public hearings.
By 31 August, Parliament’s ad hoc committee to nominate a person for appointment as the next Public Protector must report back to the House on its choice. The President makes the appointment, according to section 193(4) of the Constitution.
It’s not a given what findings the Section 194 impeachment inquiry will come to when the on-off inquiry, mired in legal challenges and legal funding pressures, finalises its report by 28 July.
It could clear Mkhwebane of the gross misconduct and incompetence counts. But it could also find her guilty. Either way, the Section 194 committee must go to the House, where impeachment must be approved by a two-thirds majority, according to section 194(2)(a) of the Constitution.
Even if impeachment is the committee’s recommendation, and even if the report is before the House on the first possible date of 28 August, it cuts just six weeks from Mkhwebane’s term in office.
It’s a dissatisfactory ending to the unprecedented process of an impeachment inquiry into the fitness for office of a Chapter 9 institution established to support democracy. The inquiry would have run over some 43 weeks.
In a case of the old dying and the new not yet born, it’s imperative to ensure this impeachment inquiry with all its controversial twists and turns does not contaminate the search for the new Public Protector.
On Tuesday, Parliament’s dedicated committee to nominate a new incumbent elected as its chairperson ANC MP Cyril Xaba, who is also the parliamentary defence committee chairperson.
On Thursday, the committee adopted a programme leading to a nomination report that will be presented to the House by 31 August, kicking off the process with an advert calling for nominations set for next week.
Last time round, the committee headed by Makhosi Khoza, then still an ANC MP, embarked on a series of public engagements, calling for public input on nominees and a day of interviewing shortlisted candidates that ended just after 3am.
Read more in Daily Maverick: Analysis: Light questions and tough decisions – the search for a new Public Protector
Mkhwebane, whose stint as an analyst in the State Security Agency (SSA) emerged in those interviews, was a compromise brokered by the EFF in committee deliberations in August 2016. The ANC had favoured Judge Siraj Desai, whom the DA and others opposed.
On Thursday, MPs agreed there should be public comment and input about nominated persons, whose CVs, with redacted personal details such as ID numbers, in line with the Protection of Personal Information Act, are set for publication in mid-July.
The shortlisting process will require a questionnaire and screening by the SSA and the SAPS, with Parliament’s human resources department doing qualification checks before a final shortlist in late July for interviews scheduled for the week of 21 August. Minister in the Presidency Khumbudzo Ntshavheni, who’s responsible for the SSA, will be asked to ensure a dedicated team is allocated for screening nominees, the committee decided.
This nomination process must now unfold. But a new Public Protector could be a reset.
Controversial from the start
Mkhwebane took office in October 2016 and triggered controversy from the start, as she changed the report-naming conventions from accessible titles to a mouthful of officialese, switched television channels to ANN7 and called in the SSA to assist.
A series of scathing court judgments highlighting her bias and misapplication of the law followed, as did punitive cost orders, by which judges show their dim view of a party before their court.
After the National Assembly passed the 17-step impeachment rules in December 2019, DA Chief Whip Natasha Mazzone in early 2020 submitted the motion calling for an impeachment inquiry into Mkhwebane.
Mkhwebane’s legal challenges started from the get-go when an independent panel on 24 February 2021 recommended to Parliament she had a case to answer on misconduct and incompetence. This was followed by the establishment of the parliamentary Section 194 inquiry committee and the President suspending her in June 2022.
Read more in Daily Maverick: Suspended Public Protector legal action hits end of the road just as impeachment hearings kick off
But when the impeachment inquiry’s public hearing finally began in July 2022, several whistle-blowers came forward regardless of the consequences.
Read more in Daily Maverick: Eight years of whistle-blower trauma – former SARS executive Johann van Loggerenberg
Read more in Daily Maverick: Whistle-blower tells of Mkhwebane’s heavy hand and ‘reckless litigation’
Read more in Daily Maverick: State Security Agency directed Mkhwebane’s attempt to rewrite SA Constitution – whistle-blower
Ultimately, the February 2022 Constitutional Court’s ruling that “full legal representation” was required in such impeachment inquiry proceedings and not just having a lawyer present to advise, would come back to bite.
That “full legal representation” has tethered the Section 194 impeachment inquiry not only to the often-lengthy addresses and legal meandos from Mkhwebane’s senior counsel, advocate Dali Mpofu, but also to paying for such legal representation.
Perhaps throwing down the gauntlet with an attitude of “Litigate at will, but the Section 194 inquiry will proceed”, would have brought about a very different process. But that’s speculation.
The Office of the Public Protector has stepped up, as has Parliament. The National Assembly had approached the Department of Justice and the National Treasury to assist in this funding, according to Speaker Nosiviwe Mapisa-Nqakula.
R4-million is available for Mkhwebane in this final stretch, although the rates charged by her legal team have increased, according to Friday’s planning meeting of the Section 194 inquiry.
Parliament’s unhappiness at how this process has unfolded — and awareness of public displeasure — is on public record, most recently at the 1 June programming committee, which talked of tightening the terms of references should a similar impeachment inquiry be necessary, and capping legal costs.
With litigation having slowed, but not stopped the impeachment inquiry, Mkhwebane’s husband, David Skosana, has laid extortion charges against inquiry chairperson Richard Dyantyi, the late Tina Joemat-Pettersson and Chief Whip Pemmy Majodina. The allegations of having solicited cash to make the inquiry go away were dismissed by all three.
At the 1 June programming committee, Freedom Front Plus Chief Whip Corné Mulder summarised succinctly, “[The delays] are no fault of committee, it’s part of a strategy… I suspect we will be taken on review, but that’s up to those wanting to go to court.”
Given precedence, further litigation would not be a surprise, although Mkhwebane would have to pay for it herself as she will be out of the Office of the Public Protector by 14 October at the latest.
Whoever Parliament nominates for appointment by the President as the next Public Protector has their work cut out for them. Public trust and confidence in this constitutionally established institution have cracked amid the swathe of litigation, be that over controversial Public Protector reports often set aside with scathing findings, to the impeachment inquiry-related lawfare.
The lesson of the past few years’ controversies must be to restore the Public Protector in the public mind as the bulwark for those at the sharp point of arbitrary state action — from flailing service delivery to ailing healthcare, the victimisation of whistle-blowers to maladministration, corruption and executive ethics violations. DM