A scathing Constitutional Court judgment against Public Protector Busisiwe Mkhwebane has sparked renewed calls for her to be struck off the advocates roll – if non-profit organisation Accountability Now has its way.
The organisation has written to the Legal Practice Council which regulates the professional conduct of legal practitioners.
This follows a damning judgment in the Constitutional Court on Monday against Mkhwebane which found that she had not told the truth and had acted in bad faith with regards to the Bankcorp/Absa investigation.
It ruled that she be held personally liable for 15% of the Reserve Bank’s legal fees in the matter.
Mkhwebane lost her appeal against paying a punishing cost order, issued by the North Gauteng High Court.
Director at Accountability Now, Advocate Paul Hoffman says Mkhwebane has lied to both the High Court and the Constitutional Court.
“If she is struck off the roll for lying on oath in the affidavits that were filed on record in the High Court and in the Constitutional Court, which is what the majority of the Constitutional Court found, she won’t be the first and she probably will not be the last advocate to be struck off the roll for lying in court. It’s a criminal offence to make a purged affidavit. And the Constitutional Court finding is essentially one of purgery on her part.”
Public Protector’s fitness to hold office
Hoffman says Parliament’s Justice Committee has been unresponsive to requests to look into the Public Protector’s fitness to hold office.
“You will know that the DA has an incompetence complaint against her, which was always kicked into touch on the basis. We must wait for what the Constitutional Court says in the Reserve Bank matter. Well, the Constitutional Court has said what it wants to say. And it’s not good news for the Public Protector. In fact, if she is properly advised she will resign her position.”
Embattled Mkhwebane has recently fought off a number of calls regarding her fitness to hold office.
The SACP said it is pressing ahead with its call for an inquiry into the fitness of the Public Protector, Busisiwe Mkhwebane, to hold office. This was in response to Mkhwebane’s announcement that she will be taking legal action against the party’s First Deputy General Secretary, Solly Mapaila.
Mapaila had slammed Mkhwebane for becoming involved in the factional battles of the African National Congress (ANC).
Findings against Zille
The Democratic Alliance (DA) has also called for an inquiry into Mkhwebane’s fitness to hold office after several scathing judgments against her reports.
The Party requested Parliament to launch a probe into Mkhwebane’s competence to hold office.
DA Chief Whip John Steenhuisen said he has evidence on why Mkhwebane should be removed from her position. Steenhuisen expressed that Mkhwebane’s findings against Western Cape Premier Helen Zille is proof that she lacks the required expertise for the job.
Steenhuisen explained the basis of the DA’s request stating: “The three elements which the Constitution qualifies for the removal being misconduct, incompetence or the inability to perform her function, and we will focus very clearly on that, also providing a variety of examples of why we believe this enquiry should be taking place.”
In the fifth Parliament, Speaker of the National Assembly, Baleka Mbete referred the matter to the Justice Committee to decide if and how such a request must be dealt with.
At the time, the DA called for the removal of Mkhwebane. Steenhuisen argued that this shows that Mkhwebane was incompetent and did not understand the role of her office.
In her response to the Justice Committee of Parliament, Mkhwebane had stated that none of the DA’s complaints can justify her removal.
EFF welcomes ConCourt judgement
The EFF also welcomes the Constitutional Court Judgment on the Public Protector’s report on the South African Reserve Bank, saying “The Constitutional Court is the highest court in the land, and thus the final arbiter on all legal disputes. It must be respected and its judgments adhered to.”
It adds that this single judgment does not mean all the Public Protector’s reports are to be ignored and dismissed.