Public protector Busisiwe Mkhwebane could become the first head of a Chapter 9 institution to be booted out of office after a report in parliament by an independent panel found prima facie evidence of misconduct or incompetence.
The panel, which was appointed in November 2020 after a series of devastating court judgments against Mkhwebane, called into question her fitness to run an agency set up to protect and promote democracy.
The evidence found by the panel, which included lawyer Dumisa Ntsebeza and academic Johan de Waal, is to be referred to a committee of the National Assembly in terms of a section of the constitution that deals with the removal of the corruption watchdog, among other things.
According to the panel’s 119-page report, there is sufficient information which constitutes prima facie evidence of incompetence or misconduct against the public protector.
This includes evidence demonstrating her overreach and exceeding the bounds of her powers; repeated errors of the same kind such as incorrect interpretation of the law and other patent legal errors; failure to give the right to be heard to the affected persons and sustained lack of knowledge on how to carry out her duties.
"The incidents of incompetence stretched over a period of at least three years commencing in 2017 and ending, in the materials before us, in 2019. This, in our view, amounts to ‘sustained’ incompetence," the report states.
Furthermore, it highlights that the courts have used epithets such as "patently wrong" in respect of some of the mistakes made, "indicating a very high degree of incompetence".
"The mistakes cover a wide range of areas and are not restricted to highly specialised legal fields."
Mkhwebane, who has been accused of using her office to defend an ANC faction aligned to former president Jacob Zuma, has been under sharp scrutiny following a series of blistering judgments that raised questions about her competency, honesty and partiality in dealing with politically charged cases.
Her report into the Vrede farm project, in which hundreds of millions of rand meant for black farmers were allegedly diverted to the Gupta family, was set aside as unconstitutional and invalid by the high court in Pretoria, which accused her of showing a lack of understanding of her duties and obligations.
A year ago, the high court trashed Mkhwebane’s findings against President Cyril Ramaphosa, whom she had accused of lying to parliament and winning the ANC leadership race on the back of a campaign tainted by money laundering. The court declared the findings unlawful.
Mkhwebane, who took over in 2016 for a period of seven years after the National Assembly backed her candidacy, may be removed from office for reasons including misconduct, incapacity and incompetence. It would require the backing of at least two-thirds of MPs in the National Assembly.
DA chief whip Natasha Mazzone, whose party had asked that parliament launch an inquiry into Mkhwebane’s fitness for the job in 2020, welcomed the panel’s report and called on parliament to institute the removal proceedings against Mkhwebane without delay.
"Her independence and credibility have also been called into question on a number of occasions and she has failed to inspire trust within the public," Mazzone said.
Council for the Advancement of the SA Constitution (Casac) executive director Lawson Naidoo said given the strength of the findings in the panel report, albeit that they are prima facie, it would be a surprise if a committee of parliament would find differently.
The public protector’s office did not respond to a request for comment on Monday evening.
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