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FEATURE: Mkhwebane’s journey from Parly to Parly

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Suspended Public Protector Busisiwe Joyce Mkhwebane’s journey through Parliament started in 2016, when she became one of more than seventy candidates who were nominated.

This as the National Assembly started searching for the next best candidate to assume office as the former Public Protector Thuli Madonsela’s seven-year non-renewable term of office was coming to an end. Mkhwebane became the successful candidate recommended to the National Assembly by an Ad Hoc Committee in September 2016. And now almost six years later she is back going through a National Assembly Parliamentary inquiry to determine her fitness to hold office.

The 2016 interview, the debate, and the resolution

An Ad Hoc Committee on the Appointment of the Public Protector was established in 2016 to search for a new Public Protector. The National Assembly passed a resolution for its establishment, chaired by former ANC MP Dr Makhosi Khoza. The Ad Hoc Committee’s selection started with the publishing of the names of candidates for public scrutiny. In a statement released by Parliament on the 1 June 2016, Khoza said publishing the names of nominees or applicants was critical for public involvement:

“Soliciting views from the public is in keeping with our Constitutional obligation, hence our unanimous decision to allow members of the public an opportunity to make their comments or objections on whether a particular name is fit and proper to be considered for the position of the Public Protector. The Committee will have to investigate any objection before making a determination on the suitability of a particular nominee or applicant,” said Khoza.

In a media briefing on 28 June 2016, an announcement was made that an extension was sought by civil society organisations.  A request was made to extend the deadline for public comment.

“ The Ad Hoc Committee established to nominate a person for the appointment of Public Protector placed adverts in newspapers calling upon members of the public to nominate suitable candidates for the appointment  as Public Protector. The nomination process opened on the 3rd June and closed on the 24th June 2016. The committee received a total of 73 nominations and applications. Seven candidates including Miss Graca Machel, Adv Gerrie Nel and former Finance Minister Nhlanhla Nene were amongst those who declined their nomination. There were other verbal nominations such as former President Thabo Mbeki, former Deputy Chief Justice [Dikgang] Moseneke and Advocate Dumisa Ntsebeza. These nominations were not formally sent to the committee, and they are subsequently been declined. And it’s not a reflection on the individuals concerned, but we are just saying we needed to act on written nominations.”

Fourteen candidates were ultimately shortlisted. Mkhwebane was one of the fourteen, shortlisted for interviews. The candidates were interviewed publicly on 11 August 2016 in one day until the early hours of the next morning. It was the first time that the interviews for the position were conducted publicly and on television. Every candidate had ten minutes to present their CVs.

At the start her interview Mkhwebane said, “My name is Busisiwe Mkhwebane. I’ll  be presenting on myself. I’m a person of prestige and influence, a believer in Christ who operates with objectivity, competence and efficiency. I am an admitted Advocate of the High Court. I am a professional woman with strong leadership capability. I have a clean criminal record and I would be purely transparent in my dealings. I’m apolitical and unbiased. Therefore, my judgments won’t be biased,” said Mkhwebane at the start of her interview on 11 August 2016.

Mkhwebane’s 2016 interview below:

After the intense interviews, the committee deliberated on and further shortlisted five candidates from the interviewees, to keep searching for the most suitable one. The top five on the list were Judge Siraj Desai, Judge Erica Weiner, Adv Mkhwebane, followed by Adv Muvhango Lukhamaine and Professor Bongani Majola.

The final deliberations to select the best candidate were on 24 August 2016. The Ad Hoc Committee came up with Mkhwebane as the recommended candidate with an objection from the DA.

“Members I don’t want to subject those process to a vote. To me it’s very clear that all the parties are in agreement with Adv Mkhwebane is that, OK, except the DA, and I think we will have to capture that as such”, Khoza reading the majority decision.

The DA had objected to her recommendation from the committee level to the National Assembly. The Assembly considered the Ad Hoc Committee recommendation on 7 September 2016.  The House passed a resolution with 263 MPs voting in favour of Mkhwebane’s recommended appointment. This paved way for her appointment by then President Jacob Zuma.  The DA was the only party that voted against the recommendation for her appointment while COPE abstained.

Flashback: 8 September 2016:  Radio Report on AM LIVE

The National Assembly has approved State Security Agency analyst Busisiwe Mkhwebane to become the new Public Protector. This after the Assembly considered the Adhoc Committee’s report that recommended Mkhwebane as the preferred candidate. All parties voted in favour of Mkwhebane except the DA which voted against. There was only one abstention from COPE.

Audio below:

The appointment by former President Zuma

The announcement that Mkhwebane would assume office effectively from the 15 October 2016 was made almost a month after the National Assembly approved the recommendation for her appointment.

The Presidency said: “President Jacob Zuma has in terms of section 193(4) of the Constitution of the Republic of South Africa, 1996, and on the recommendation of the National Assembly, appointed Advocate Busisiwe Joyce Mkhwebane as the Public Protector of the Republic of South Africa for a period of seven years with effect from 15 October 2016. The President has thanked outgoing Public Protector, Advocate Thulisile Madonsela for her services and wished Advocate Mkhwebane all the best in the execution of her new responsibilities”, read the statement released by then Presidential Spokesperson Dr Bongani Ngqulunga.

Calls for her removal from office started in 2017

Less than a year in office, calls for Mkhwebane’s removal from office started with her fitness to hold office being questioned. One of her remedial actions related to the CIEX report. She had recommended that the mandate of the Reserve Bank be amended by Parliament.

In June 2017, DA Member of the Justice and Correctional Services Committee Glynnis Breytenbach said in a statement, “The DA expresses serious disquiet at the ‘remedial action’ proposed by the Public Protector, Busisiwe Mkhwebane, in which she instructed Parliament’s Committee on Justice and Constitutional Development to amend the Constitution in relation to the powers of the South African Reserve Bank (SARB). Clearly, her recommendation goes beyond what she is legally empowered to do and is indicative of her long-term plan to render the Public Protectors office ineffective.”

The report on the Reserve Bank was taken on review in the North Gauteng High Court.

Breytenbach welcomed the court decision: “The DA welcomes the decision by the North Gauteng High Court to set aside Public Protector, Busisiwe Mkhwebane’s, remedial action which called for the South African Reserve Bank (SARB) to amend its constitutional mandate.

Despite initially defending her recommendations, Mkhwebane later admitted that she had overstepped the boundaries of her power as Public Protector and withdrew her application against SARB.”

“We have long held that Mkhwebane may not be the best candidate for Public Protector, and she has already shown she does not understand her mandate,” Breytenbach added.

One of the DA’s requests for an investigation into Mkhwebane’s fitness to hold office first landed on the table of former National Assembly Speaker Baleka Mbete in October 2017. The request was referred to the Justice and Correctional Services Committee that was chaired by Dr Mathole Motshekga at the time. Motshekga had suggested that an Ad Hoc Committee be established instead of the Justice and Correctional Service Committee looking into the issue. His proposal for Ad Hoc Committee was supported by Werner Horn from the DA and Steve Swart from the African Christian Democratic Party (ACDP) during the committee meeting. Motshekga faced an open revolt from his party members in the committee.

“ I, decided that I would table this matter for your consideration that we request speaker to establish an Ad Hoc Committee to deal with the matter on two grounds, firstly that our programme is full we have to finalise legislation and also that I don’t think we have the capacity as this committee to deal with the complex matters that would arise,” said Motshekga.

Swart agreed: “Chair I still believe your course of action that an ad-hoc committee deal with the matter is better. Let us also remember the basis of the was that you as the chairperson have to amend the constitution.”

“Your guidance in terms of the precedent of Ad-Hoc committees dealing with the matter, is also valid,” Horn added.

Motshekga’s attempts to use his chairperson powers to make the final call failed, as ANC members of the committee requested to have a short caucus where Motshekga was not even invited. When they returned, the majority decision of the ANC members prevailed as then ANC Whip in the Committee Makgathatso Pilane-Majake outlined their position.

“ The(ANC) members therefore have decided that the committee should rather look at the matter as tabled today instead of looking into matters of capacity. We do believe when there is a problem the committee needs to meet on additional days Fridays or Saturdays so that we can be in a position to look into the two matters of importance” Pilane-Majeke said.

Renewed removal calls by the DA in 2018 

The calls for Mkhwebane to be removed from office continued.

“The DA will write to the Speaker of the National Assembly, Baleka Mbete, to again follow up on the request that Parliament institute proceedings in terms of section 194 of the Constitution to remove the Public Protector, Advocate Busisiwe Mkhwebane.”

“Yesterday, 28 March 2018, the Gauteng High Court in Pretoria rejected an application by the Public Protector to appeal against a judgment of the court in the matter of ABSA Bank Limited & Others v the Public Protector Case No 48123/2017 in which she was ordered to personally pay 15% of the costs due to her gross incompetence”, John Steenhuisen of the DA said in a statement.

Mkhwebane Motion pursued in 2019 after General Elections

The call by the DA for the National Assembly to investigate Mkhwebane’s fitness to hold office did not end in the 5th Parliament under Mbete. A new request was made by Steenhuisen for a DA Motion to be considered by the New National Assembly Speaker Thandi Modise.

Steenhuisen had written to Modise a day after she was elected Speaker. The former DA Chief Whip called on Modise to institute a new investigation process into Mkhwebane’s fitness to hold office. At the time, he said it followed the latest judgment of the North Gauteng High Court which set Mkhwebane’s report into the Vrede Dairy Project aside. The DA Chief Whip said they were optimistic that the ANC won’t use its majority to block Mkhwebane’s removal as was seen in the 5th Parliament:

“ I think there is a different Parliament now. This is a 6th Parliament. There are new office bearers and if the ANC, the President in particular, is committed to tearing up and clearing up as the President has said that he is committed to transparency and accountability as he said after the election as the President in the National Assembly surely they can’t sit on their hands and scratch their heads about one of these key important institutions in our democracy that is deeply compromised by an office-holder who continues to embarrass the institution, who continues to have her reports set aside, and continues to bring questions of competency around her office”,  said Steenhuisen in a radio interview with SABC News in Parliament when he reacted to the election of Modise as new Speaker.

On 1 June 2019, Parliament said Modise was seeking advice on how to best deal with Steehuisen’s request as the structures of Parliament were not yet established. The National Assembly Rules Committee still had to meet in the first week of June to establish Parliamentary Portfolio Committees in line with the reconfiguration of the Ministries.

“ The Speaker has received the letter of request from the Chief Whip of the official opposition regarding the initiation of removal proceedings against the Public Protector Advocate Mkhwebane. So the rules indicate that ,- as and when the Speaker receives a request of this nature, she is obligated to refer it to the appropriate structure of the National Assembly for consideration. So, as you know, quite a number of structures of Parliament have not been created yet. So, the Speaker therefore is busy seeking advice on how best to deal with the request of the Democratic Alliance”, Parliament’s Spokesperson Moloto Mothapo told SABC News in Parliament in a radio interview.

Mazonne tables motion

When Steenhuisen became the DA’s interim Parliamentary Leader following the resignation of Mmusi Maimane in 2019, Natasha Mazonne became the new DA Chief Whip. The motion was pursued.

National Assembly rules to remove the PP

The National Assembly faced a new challenge on proceedings to be followed to remove a Public Protector from Office. It caused further delay to process the DA Motion.

The removal of a Public Protector and the grounds for such removal are provided for in Section 194 under Chapter 9 of the South African Constitution. Section 194 makes provision for the removal of all Heads of Chapter 9 Institutions including the Public Protector. There are five Chapter 9 institution outlined in the constitution. They are the Public Protector, The South African Human Rights Commission, the Commission for the Promotion and Protection of the rights of Cultural, Religious and Linguistics Communities, Auditor-General and the Electoral Commission.

The grounds to remove Heads of Chapter 9 Institutions are the same but the threshold that is needed to impeach them, differ. They can only be removed on grounds of misconduct, incapacity or incompetence as provided for in Section 194 (1)(a) of the Constitution.  The Constitution in Section 194(1)(b) further requires a finding to be made by a National Assembly Committee and conclude the removal with a National Assembly resolution calling for such a removal as provided for in Section 194 (1)(c) before the President can remove the person from office.

The President may also suspend a Head of a Chapter 9 Institution from office at anytime after the start of the proceedings of a National Assembly committee for the removal of that person as outlined in Section 194 (3)(a). However, in terms of Section 194 (3)(b) the President must remove the person from office once the National Assembly has resolved that the person be removed.

Two thirds versus majority threshold for removal

The constitutional provision in Section 194 (2)(b) to remove any Head of the three commissions, require a majority vote in the National Assembly which consists of 50% plus 1 vote. This means 201 of the 400 members of the National Assembly should support the removal of the Head of the Independent Electoral Commission, South African Human Rights Commission or Commission for the Promotion and Protection of the rights of Cultural, Religious and Linguistics Communities from office.

However, Section 194 (3)(a) of the Constitution requires a higher threshold for the removal of an Auditor-General or Public Protector from office. A two thirds majority vote which constitutes 66.66% is needed to remove the A-G or the PP. In terms of votes in the National Assembly, 266 to 267 of the 400 members of the National Assembly should vote in favour of the removal of the PP or A-G from office.

The National Assembly Rules Committee had to develop new rules for office bearers in institutions supporting constitutional democracy. The procedures to follow are also outlined in National Assembly Rule 129 (R) for a member of the National Assembly who wants to initiate an inquiry for the removal of a Head of a Chapter 9 Institution. The Rules were passed during a National Assembly sitting on 3 December 2019.

This paved the way for the DA to submit a motion in terms of the adopted rules. Mazzone submitted a motion days later. However, she withdrew her Motion in February 2020 and resubmitted a new one with supporting evidence. 

The Independent Panel and the Section 194 Committee

The Section 194 Inquiry into Public Protector’s fitness to hold office ultimately kicked off after multiple legal battles between Mkhwebane and the National Assembly. Mkhwebane first challenged the constitutionality of the National Assembly Rules to remove a Head of a Chapter 9 Institution from office.

One of the provisions in the Rules is the appointment of a three-member Independent Panel of Experts which could include a retired judge. The panel is appointed by the National Assembly Speaker in consultation with political parties in the National Assembly. Parties are required to nominate persons they want to be appointed to the panel.  The role of the panel is to assess the motion brought by a member of the Assembly and establish if there is any prima facie evidence that may warrant an inquiry.

Unavailability of panelists

There were initially multiple attempts to appoint a panel to kick start the process, without success. The process was stalled due to the unavailability of some panelists. This was revealed in a National Assembly Programme Committee meeting in July 2020 where concerns were raised about the delay to start with the inquiry.  Secretary to the National Assembly Masibulele Xaso had given the Programme Committee an update on why the process could not start.

“ As honourable members would know Speaker had asked parties to make submissions in terms of who  could be nominated to serve on that three member panel. And submissions were indeed received from parties. And Speaker has been in that process of approaching potential panelists who were indeed approached.  But out of the number that was approached, only one was able to indicate availability to serve. Speaker is now engaged in the process of approaching another set of panelists. So, up to now, there have been about four declines. So, the matter is ongoing and as soon as the three panelists have confirmed availability to serve on the panel,- a statement will be made to the office of the Speaker”

Panel appointed

 A three-member Independent Panel of Experts Chaired by retired Constitutional Court Justice Bess Nkabinde was only appointed in November 2020. The other two members of the panel were  Advocate Dumisa Ntsebeza and Advocate Johan De Waal. The announcement about the appointment of the panel and its role were made on 25 November 2020.

“The panel will start its duties on a date to be announced.  The panel must determine whether there is prima facie evidence to show that the holder of a public office committed misconduct; is incapacitated; or is incompetent. In so doing, it must provide the holder of a public office with a reasonable opportunity to respond, in writing, to all relevant allegations. It may not hold oral hearings but must limit its assessment to the relevant written and recorded information placed before it. In terms of the rules, the panel must complete its work and report within 30 days. The report in turn must be scheduled for consideration by the House. The panel may otherwise determine its own working arrangements,” said Parliament’s Spokesperson Moloto Mothapo.

Panel found Mkhwebane had a case to answer

The Nkabinde led panel report revealed that Mkhwebane had a case to answer on grounds of incompetence and misconduct. The prima facie evidence of incompetence related to the reports on the Vrede Dairy Project, the South African Reserve Bank, SARS Rogue Unit, Financial Sector Authority and GEMS.

Some of the misconduct prima facie evidence relate to claims that Mkhwebane altered the Vrede Dairy report and for allegedly not revealing that she had a meeting with the State Security Agency as well as two meetings with the Presidency in April and June 2017  during the CIEX investigation into the Absa Bankorp Lifeboat. Her handling of the CR 17 investigation is another prima facie misconduct finding made by the panel.

“Additionally the PP patently made a wring finding of money laundering in the CR17 matter and doubted the bona fides of the President without reason. In our view the conduct of the PP also constitutes prima facie evidence of incompetence”, the panel report concluded on the prima facie misconduct findings.

According to the panel report, Mkhwebane made her representations on time with supporting evidence on 27 January 2021 after requesting for an extension on 5 January 2021.

The panel recommended that the prima facie evidence of incompetence and misconduct should be referred to a National Assembly committee as provided for in the NA Rules.

Panel report endorsed and committee established

The panel report was considered by the National Assembly on 16 March 2021. The Assembly approved the panel report and established special committee now referred to as a Section 194 Committee. There were objections from some political parties. In its report the panel made the suggestion that a Section 194  Committee be established.

“ The panel, comprising Justice Bess Nkabinde [as Chairperson], Advocate Dumisa Ntsebeza and Advocate Johan De Waal, recommended that the charges based on the findings of prima facie evidence of incompetence and misconduct be referred to a special section 194 committee of the NA for formal inquiry to investigate (if it so resolves), in terms of section 194 of the Constitution”,  said Parliament’s Spokesperson Moloto Mothapo in a statement on 16 March 2021.

After various postponements and legal battles, the actual inquiry was still on hold pending the outcome of various court challenges that were launched by Mkhwebane. She challenges among other things, her possible impeachment. The dismissal of Mkhwebane’s rescission application with the Constitutional Court paved way for the Section 194 committee to plan for the hearing.

Committee resolution to continue with inquiry

On 11 May 2022, the Section 194 Committee resolved to continue with its inquiry into Mkhwebane’s fitness to hold office. This was despite her correspondence received by Parliament’s Legal Services that she is challenging the Constitutional Court decision of 6 May 2022 which dismissed her rescission application.

Mkhwebane informed Parliament that the ConCourt should not have taken a decision on her rescission application pending the outcome of the investigation by the Chief Justice Raymond Zondo into a controversial  SMS saga. The SMS was send to Parliament’s Senior Counsel, a few weeks before the court outcome. The matter was reported ro  Zondo for investigation.

However when he briefed the committee on the way forward Parliament’s Senior Legal adviser Siviwe Njikela said, “ Now there is another application by the Public Protector which we have received wherein she seeks to rescind the decision of the constitutional court of the 6th  on the basis that it should not have been issued. And I’m trying to find the right word Chairperson, but it seeks to rescind the decision NOT to rescind the decision of the Constitutional Court. So, we are in that space Chairperson, therefore that there is an application at the moment again for the decision of the 6thto be rescinded.”

Inquiry officially started in July 

The inquiry officially kicked off on 11 July 2022 with opening remarks by the evidence leaders and Mkhwebane’s legal representative. Committee Chairperson Richard Dyantyi reassured everyone of the committee’s commitment to ensure fairness.

“This is a process that we do with no Predetermined outcomes. I’ve always made the point that none of us must have any briefcase outcomes. You might be carrying your briefcase if you have determined a particular outcome for this process, we do have a medical team here that is going to attend to your stress levels, because it’s going to be a very rigorous process which might not come to your outcome at the end of it,” Dyantyi emphasised.

The first witness was constitutional expert Hassan Ebrahim who took the stand on 12 July. The purpose of Ebrahim’s testimony was to bring the important constitutional role played by a public protector to the fore:

“When the Public Protector fails to discharge her mandate and duties, the strength of South Africa’s constitutional democracy is inevitably compromised, and the public is left without assistance of the constitutional created guardian”, Hassan emphasised.

Eleven other witnesses have testified so far. Two former SARS Executives, Johan van Loggerenberg and Ivan Pillay took the stand.

The nine other witnesses who worked with Mkhwebane also testified. These include former and current executives and managers. They are, the dismissed Senior Investigator in the Office of the Public Protector Kholofelo Kekana, former CEO Vussy Mahlangu, reinstated Head in the PP’s office in the Free State Sphelo Samuel, Senior Manager for Executive Support in the Office of the Public Protector Futana Tebele,  former Senior Manager for Security in the PP’s office Balwin Neshundzhi, Acting Head of Corporate Services Gumbi Tyelela, former Senior Investigator in the Private Office of the Public Protector Advocate Nditsheni Raedani, Senior Investigator in the Private Office of the PP Advocate Livhuwani Tshiwalule and Reginald Ndou who is a former Senior Manager in the Office of the Public Protector.

Ndou who testified on Thursday is expected to return to the witness stand this week after signal problems kicked him off the virtual platform as Mkhweban’e Legal Representative Dali Mpofu was still cross examining him.

The next witness to testify on Monday morning is former Chief Operations Officer in the Office of the Public Protector Basani Baloyi.

And while Mkhwebane is not yet on the witness stand, she is continuing with her legal challenges. This time, she is challenging her suspension by the President. She took the battle to the Western Cape High Court where it was heard on 25 and 26 July 2022. She wants the court to set her suspension aside.

Mkhwebane argues that her suspension is unconstitutional. The suspended Public Protector further argues that Ramaphosa has no authority to suspend her as she has instituted an investigation into the Phala Phala Farm scandal. Another argument is that the President can only suspend her once the parliamentary committee which has been established to conduct the removal proceedings, has started with the hearing.

Judgment has since been reserved.

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