OUTA calls on Public Protector advocate Busisiwe Mkhwebane to resign, following the recent court rulings against her office, particularly last week’s ruling on the CIEX matter.
“We will be approaching Parliament requesting them to review her actions and call her to account,” says OUTA COO Ben Theron.
Friday’s judgment, by a full bench of the Pretoria High Court, set aside the remedial action in the Public Protector’s report from June 2017 that, arising from the CIEX report, Absa Bank should repay R1.125 billion to the South African Reserve Bank (SARB) for an apartheid-era transaction.
“We have not been impressed by the Public Protector’s conduct since her early days and this particular judgment sends a clear message that advocate Mkhwebane acted outside of her powers and was biased in her findings,” says advocate Stefanie Fick, OUTA’s Head of Legal Affairs.
“We are concerned at her one-sided reporting and it is extremely worrying when the Public Protector does not apply the basic principles that require her to conduct an in-depth interview with the accused before making her findings.” In this case, she did not consult with Absa before publishing her report as required. Instead, she consulted other parties, including the Presidency and the State Security Agency, and accepted their evidence. She also visited the President’s residence but failed to mention this in her report.
The Pretoria judges were scathing, saying that the Public Protector “does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice”. They said that she “did not conduct herself in a manner which should be expected from a person occupying the office of the Public Protector”, that there was a “reasonable apprehension of bias” and ruled the remedial action recommended in the report to be unlawful. The court took such a dim view of her actions that it took the unusual punitive step of ordering her to personally pay 15% of the SARB costs.
The Public Protector’s report earlier this month on the dishonest Vrede dairy project in the Free State – a project previously exposed as an excuse for looting millions from the state – was discredited by recommending that Free State Premier Ace Magashule set up an investigation into this matter although he himself is implicated in it.
“She has used the excuse of insufficient resources to produce half-baked reports and avoid investigating state capture,” says Theron. “It’s time for her to go.”
OUTA is a proudly South African non-profit civil action organisation, comprising of and supported by people who are passionate about holding government accountable and improving the prosperity of South Africa.
Glynnis Breytenbach, DA Shadow Minister of Justice and Constitutional Development – 18 February 2018
The DA has written to the Speaker of the National Assembly, Baleka Mbete MP, requesting that she expedite the process to remove the Public Protector, Adv. Busisiwe Mkhwebane in terms of Section 194 of the Constitution which states that the Public Protector may be removed from office on:
(a) the ground of misconduct, incapacity or incompetence;
(b) a finding to that effect by a committee of the National Assembly; and
(c) The adoption by the Assembly of a resolution calling for that person’s removal from office
The Speaker must now see to it that the proceedings to have the Public Protector removed commence swiftly as Mkhwebane has repeatedly demonstrated that she is not to fit to serve as Public Protector. The decision by the High Court to set aside her Bankorp-CIEX report, in which she recommended that ABSA pay back R1.1 billion, was a damning indictment on her fitness to hold office.
She clearly does not understand her role as Public Protector and misconstrued the powers of her office when, in the same report, she proposed that the Reserve Bank’s mandate be amended.
The DA has repeatedly called for Mkhwebane to be fired as Public Protector as having her at the helm has harmed the integrity of the office she holds. Just last week, Mkhwebane said the DA was “unpatriotic” for criticising her work. Such remarks show that she is biased and that cannot be accepted from the head of a Chapter 9 institution.
We have previously instituted the process of Adv. Mkhwebane’s removal through the Justice Committee but it was shut down by the ANC members that form part of this committee towing the party line. Parliament can no longer sit idly by while this important office is rendered useless by the incumbent.
South Africa deserves an objective Public Protector who is committed to upholding the rights of all citizens and defending them without fear or favour and Mkhwebane has proved she is not the right fit.
The Speaker must now act with haste in order to ensure that parliament can do its work immediately by firing Mkhwebane which would begin to restore public confidence in this important institution.