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SECTION 194 INQUIRY

Long road to impeachment: Mkhwebane is guilty as charged – here’s a breakdown of the damning findings

Long road to impeachment: Mkhwebane is guilty as charged – here’s a breakdown of the damning findings
Suspended Public Protector Busisiwe Mkhwebane during impeachment proceedings at Parliament on 1 February 2023. (Photo: Shelley Christians)

Suspended Public Protector Busisiwe Mkhwebane has been found guilty of four charges of misconduct and incompetence by a parliamentary committee that began hearings more than a year ago.

Section 197 multiparty committee members, minus the EFF, the UDM and ATM, finalised deliberations on Sunday and agreed with an earlier opinion by an independent panel that there is enough prima facie evidence of misconduct and incompetence.

Committee chair Qubudile Dyantyi announced in a statement that the weekend deliberations would inform the draft and final report which would be adopted before being sent to Mkhwebane for her written response.

So far, Mkhwebane has missed three deadlines to respond to written questions sent to her by committee members and the evidence leaders, advocates Nazreen Bawa and Ncumisa Mayosi.

Read more in Daily Maverick: Mkhwebane misses inquiry deadlines while lawyer bounces back after sudden hospitalisation

Dyantyi said the committee had found that evidence presented to it for more than a year sustained the charges of misconduct and incompetence “in some respects”. 

He added that “we will provide the PP with a final audit before adopting the final report that will be sent to the National Assembly”.

The independent panel, led by retired Constitutional Court judge Bess Nkabinde together with advocates Dumisa Ntsebeza and Johan de Waal, was unequivocal in its findings that there was prima facie evidence to support the charges and to challenge Mkhwebane’s fitness to hold office.

Not impartial

With regard to the SARS “rogue unit” report, members agreed that evidence “feeds the narrative that Advocate Mkhwebane was not impartial”. 

The committee also recommended that Mkhwebane’s possession of a classified report by the inspector-general of intelligence was “unlawfully received and perused” and that this amounted to misconduct. 

Mkhwebane had relied on the report as the bedrock for her SARS investigation. It was dropped off at her offices, the committee heard, by EFF deputy leader Floyd Shivambu. The then Public Protector claimed at the time that this had been done anonymously.

Read more in Daily Maverick: 2014 Radebe report into ‘rogue unit’ based on discredited witnesses, sheds light on genesis of attack on SARS

With regard to her investigation into the then ANC deputy president Cyril Ramaphosa’s CR17 campaign funding, the committee found Mkhwebane “did not conduct the investigation in a manner that ensured impartial or independent conduct”.

Mkhwebane had relied on the wrong “ethical code” in arriving at her determination in that instance, it noted.

The appointment of the late Sibusiso Nyembe as a “political adviser” as well as the suspended Public Protector’s reliance on Paul Ngobeni “as a consultant” and Kim Heller and Professor Sipho Seepe as “communications experts”, were also highlighted by the committee.

Dyanti said the intention of the committee was to convene a “sign-off meeting” on Friday or Monday, but this would be confirmed.

The historic and unprecedented process for the impeachment of the Public Protector was part of a protracted 17-step process, with the final chapter being the vote.

The independent panel had found “substantial information” that constituted evidence of incompetence. 

‘Sustained incompetence’

The most glaring, it noted, was “evidence demonstrating that the PP 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”. 

After examining at least six of Mkhwebane’s reports, the independent panel found that there had been “sustained incompetence” on her part, which had suggested “an inability to learn from mistakes by adopting a more careful approach”.

On the Vrede Dairy matter, the independent panel found that Mkhwebane, “amongst other things, altered the final report and gave the premier (at the time Ace Magashule), 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 to why this was done…” 

The committee has concurred with this.

There were 17 long, drawn-out steps which led to this historic Section 194 inquiry, named after the section in the Constitution that deals with the removal from office of the heads of institutions established to support democracy. 

The last step will 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

With regard to a charge of misconduct and/or incompetence related to staffing matters in the office of the Public Protector South Africa, Mkhwebane was also found guilty.

Seven PPSA officials had been threatened or had faced disciplinary action during her tenure and it was former CEO Vussy Mahlangu who had been responsible for this reign of terror.

Throughout the inquiry advocate Dali Mpofu, when he still appeared on behalf of Mkhwebane, had branded all of them as “disgruntled” with “an axe to grind”. 

These were people, Mpofu suggested, who could not live up to Mkhwebane’s high standards.

With regard to the astronomical legal bills and expenditure that have piled up during Mkhwebane’s tenure, the committee found she had displayed misconduct and incompetence in that she had mismanaged resources. This had prejudiced administration and resources of the Chapter 9 institution.

The suspended public protector’s term officially ends on 12 October and the nomination process to appoint a successor is under way. DM

Gallery

Comments - Please in order to comment.

  • Josie Rowe-Setz says:

    They got it past the post in time. Given the opposing tactics this committe has been nothing short of heroic. Especially Djanti who hs remained steadfast in the face of appalling assault. I applaud.

    • Steve Davidson says:

      But Josie, can’t this disgrace of a ‘PP’ not spin it out so she gets her payoff at the end of October? If she can, then I’ve already suggested that the DA or others open civil cases against her and ensure she doesn’t get to enjoy the apparently ten million bucks she’s going to receive despite her total unworthiness in the job?!

    • Maretha Gous says:

      I agree whole-heartedly and join you in applauding them.

    • Fanie Rajesh Ngabiso says:

      I agree 100% – A very very well done to the committee.

  • Caroline Rich says:

    I hope she’s not being paid.

  • Michael Forsyth says:

    And here comes the appeal to the Constitutional Court. That retirement pot still glisters.

  • Timothy Fearnhead says:

    about time . Trust Parliament will move swiftly!

  • Fanie Rajesh Ngabiso says:

    Problem is that, in addition, like so many she is stubbornly arrogant and self serving. It is simply not possible that she is so dense as to not recognise what she has been doing and continues to do to our country.

  • Ernest Esterhuizen says:

    The only benefit of this process is that it prevented the PP from fulfilling her PP duties, otherwise it was a complete waste of time
    of taxpayers (I.e our money) and because the process finished 2 months before the end of her term. She still qualifies for the millions irrespective of the outcome. Then there is every chance that two thirds majority (or the anc) vote in her favour just to spite the rest of the nation. However, alls well that ends well. Good riddence. She’s been a PUBLIC disgrace.

  • Mike Waghorn says:

    Would be interesting to see unemployment stats visa vie the population during apartheid and those same stat now.
    Anyone have those figures?

  • Johan Buys says:

    I can’t help thinking that way before this looooong affair, CR should have started this process. Fast asleep in frog pyjama. again?

  • 1957.tonycole says:

    This conclusion should have been reached a year ago. This demonstrates the incompetence of the Parliamentary Committee. The Con Court reached the same conclusion in months. A total waste of tax payers money

  • Andy Miles says:

    This process is a case study that reveals there is a serious need to overhaul some of SA’s legal frameworks. It is satisfying that we may get the correct outcome, but at a cost to the tax payer of probably R100 million – the PP bill reported over R30m, the other side probably the same, that’s another R30m and then all the actual “event”/procedural costs. Morally it’s indefensible to waste money like this, and a further example of where there is nothing common about common sense, the application of which would have brought a swifter and more meaningful result.

  • Arved von Oettingen says:

    Mkhwebane should not even have made it to office. The DA hoisted red flags at the time of her nomination. These were ignored by the Powers that be!!

  • Pierre Joubert says:

    The headline Guilty as Charged is misleading, Its only a Commission, like Zondo was, which after three years in the public glare is not empowered to make a guilty finding, can only refer the case “higher up” for trial and decision. The Greatest Show on Earth that ever was

    Our hallowed Constitution after years of abuse was designed to protect the Innocent, but all it is doing is protect the Guilty, by allowing them to wallow in Legalese forever or as long as the money lasts, whichever comes first

    Best group of words in this Page of Confusion is comment by Andy Miles

    “This process is a case study that reveals there is a serious need to overhaul some of SA’s legal frameworks”

    At another time, perhaps the biggest crime in human history, World War 2, the case was done and dusted by the Nuremburg Tribunal in less than a year, with remaining perpetrators punished. If Zondo Commission had been a Tribunal, or series of, it would all have been over, and no Thickest Book Ever Published in six volumes to Bury the Case Forever would have been necessary

    And where did the R130m go, into the pockets of the Legalese, none of whom are standing up to say what Andy Miles is saying, coz it’s too Cozy Under the Umbrella

    • Peter Dexter says:

      Agreed! The principle that the state pays one’s legal bills removes all accountability. Those in the public sector should be personally accountable just as company directors.

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