2019-07-22 15:13

Jan Gerber

After a damning Constitutional Court ruling against Public Protector Busisiwe Mkhwebane on Monday, some political parties and civil society organisations want the parliamentary process to remove her from office expedited and struck off the advocates roll.

The court upheld a personal costs order against Mkhwebane and, in a majority ruling, found that she had put forward a “number of falsehoods” in her controversial Absa/Bankorp investigation, which was described as “flawed” and conducted in “bad faith”.

Mkhwebane faces a request for her to be struck off the advocates roll by the Legal Practice Council.

Accountability Now, a non-profit organisation, wrote to the Legal Practice Council soon after the ruling, asking them to take note of the case.

“There are serious, final and unappealable findings reflecting on the honesty, integrity and competence of the Public Protector, who is a duly admitted advocate of the High Court,” Adv Paul Hoffman, a director at Accountability Now, said in the letter to the Legal Practice Council, seen by Fin24

‘Not fit to hold the office’

DA chief whip John Steenhuisen said the judgment proved that Mkhwebane’s failings “go much deeper than simple technical errors”. 

“Simply put, she is not fit to hold the office she occupies and is, in actual fact, grossly incompetent,” Steenhuisen said in a statement.

“A distinction must be drawn between the current incumbent of the office of the Public Protector and the office itself. Nobody can argue that the current incumbent is, by any stretch of the imagination, a suitable occupant. The DA does, however, believe that every report produced by the office of the Public Protector should still be judged on its own merits.

“The DA will therefore write to the speaker to request that our complaint regarding the Public Protector’s fitness to hold office be expedited.”

He added that the DA would also study the judgment to determine whether perjury charges should be laid against Mkhwebane.

Expedite process

The ANC’s alliance partner, the SACP, also welcomed the ruling and reiterated its call that Parliament should “discharge its constitutional responsibilities, initiate an inquiry into her fitness to hold office on the basis of the damning court findings against her, and hold her to account for her untenable actions as detailed in the numerous court findings”.

“South Africa cannot afford to have an individual, who has been found to be dishonest by the apex court of the land, still continuing to function in that capacity,” SACP spokesperson Alex Mashilo said in a statement.

Cope also called for the process to be expedited. 

“The judgment is clear that the Public Protector Mkhwebane acted in bad faith,” Cope spokesperson Dennis Bloem said in a statement.

“The mere fact that Mkhwebane is losing almost all cases that are taken on review, is costing the taxpayers a lot.

“Cope is pleased that Mkhwebane must pay a portion of the legal costs; this will also teach her a lesson not to release reports in bad faith.”

There were also calls for Mkhwebane’s removal from civil society groups.

The Organisation Undoing Tax Abuse (OUTA) said in a statement that she should prepare to vacate her office.

“The ConCourt judgment against her is damning. She can no longer continue in that role,” advocate Stefanie Fick, OUTA’s head of legal affairs, said.

“Her pushback against accountability measures by Parliament further underlines her lack of understanding of her role.” 

Court action threats

On Sunday, it emerged that Mkhwebane wrote to National Assembly speaker Thandi Modise and threatened court action if Parliament tried to remove her, the Sunday Times reported.

In the letter, Mkhwebane claimed Modise had violated the Constitution by acceding to the DA’s request for the committee to consider the matter, the weekly publication reported.

Her main argument was that, while the Constitution did not give grounds for her removal, Parliament has not adopted any rules in how that process should be governed.

Parliamentary spokesperson Moloto Mothapo reportedly said Modise responded, saying that the process would continue.

Mashilo said it was “inappropriate for a person accountable to Parliament to threaten the legislative organ of our state for holding them responsible for their actions”.

Section 194 of the Constitution provides for the removal of heads of Chapter 9 institutions, such as the Public Protector and Auditor General.

Two thirds majority

Such a person can only be removed on the grounds of misconduct, incapacity or incompetence after a finding to that effect by a committee of the National Assembly. Furthermore, the National Assembly must pass a motion for the person’s removal with a two-thirds majority. 

The Constitution also provides that the president “may suspend a person from office at any time after the start of the proceedings”.

This is the third time the DA has attempted to institute removal proceedings against Mkhwebane.

Previously, the fifth Parliament’s Portfolio committee on Justice and Correctional Services decided to not go ahead with removal proceedings.

Mkhwebane’s legal battles are not over.

Minister of State Enterprises Pravin Gordhan lodged an application for the review of her findings against him in the so-called “rogue unit” at the South African Revenue and President Cyril Ramaphosa indicated on Sunday that he would also approach the courts to review her findings against him relating to a donation from Bosasa boss Gavin Watson for his 2017 ANC presidential campaign. 

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