Suspended public protector Busisiwe Mkhwebane has been found guilty of incompetence and misconduct by parliament’s ad hoc committee investigating her fitness to hold office.
The committee voted on the charges faced by Mkhwebane on Sunday and largely endorsed the findings of the independent panel led by retired Constitutional Court judge Bess Nkabinde that found there was prima facie evidence of incompetence and misconduct on her part.
Mkhwebane will be given an opportunity to comment on the report of the committee’s findings, chairperson Qubidile Dyantyi said at the conclusion of the day’s meeting. Thereafter the report will be submitted to the National Assembly for a vote on whether to impeach Mkhwebane.
Several parties did not participate in the committee’s proceedings on Friday and Sunday, including the EFF and UDM, with the result that only the views of the ANC, DA, ACDP and Al Jama-ah were reflected in Sunday’s decisions. Al Jama-ah leader Ganief Hendricks came to the defence of Mkhwebane on many issues.
The committee found that Mkhwebane did not act with independence and impartiality in her investigations, which were often conducted with a predetermined outcome in mind. According to ANC deputy chief whip Dorries Dlakude, Mkhwebane selected evidence that suited her.
She was found to have intimidated, harassed and victimised certain members of staff and failed to protect those who were maltreated by former CEO Vussy Mahlangu.
“In my mind there is clear evidence of victimisation,” DA MP Annelie Lotriet said. MPs observed that a punitive culture prevailed while Mkhwebane was at the helm.
Court skirmishes
Committee members also agreed that Mkhwebane had displayed misconduct and/or incompetence in failing to effectively and efficiently manage the resources of the public protector’s office because her “reckless” litigation reduced the budget available for its core mandate and prejudiced its investigations and administration.
Many of Mkhwebane’s court actions to defend her reports were rejected by the courts, several of them with personal cost orders against her. The majority of committee members agreed that she intentionally failed to prevent fruitless and wasteful expenditure on court cases that had little prospect of success.
Mkhwebane was also found by the majority of committee members to have displayed incompetence and misconduct and a lack of impartiality in her handling of the SA Revenue Service (Sars) “rogue unit” case which implicated former Sars commissioner Pravin Gordhan and former Sars executive Ivan Pillay in wrongdoing linked to the establishment and operations of the unit.
DA MP Kevin Mileham noted that in this case Mkhwebane relied on unsubstantiated allegations by political parties, which were no basis on which to make her findings. ANC MP Boyce Maneli noted that she did not approach the matter with an open mind while ANC MP Xola Nqola added that she conducted the investigation with a predetermined outcome in mind.
Mkhwebane’s conclusion that the establishment of the Sars “rogue unit” was unlawful was declared invalid by the Gauteng High Court, which found that it was the product “of a wholly irrational process bereft of any sound legal or factual basis”.
Mkhwebane was found by the majority of committee members to have been negligent in her handling of a classified report on the unit by the inspector-general of Intelligence.
The committee also found several of Mkhwebane’s appointments — seemingly in pursuit of a political agenda — suspect.
On Friday the committee dealt with Mkhwebane’s reports into the Absa lifeboat and the Vrede dairy farm matter and again the majority found misconduct or incompetence. On the Vrede dairy farm complaint, MPs found Mkhwebane guilty of misconduct as she showed no will to properly investigate the matter and failed to interview the intended beneficiaries of the project.
On the lifeboat case, the committee found that Mkhwebane was guilty of misconduct. She met with the presidency and the State Security Agency (SSA) but did not disclose this in her investigation report as she was legally required to do. No transcripts were made of the meetings. The majority of committee members believed there was a deliberate bid to keep these meetings secret whereas the public protector was under a legal obligation to disclose how she arrived at her recommendations and remedial action.
The committee found that Mkhwebane had exceeded her powers and had tarnished the reputation of the public protector’s office.
The committee agreed that Mkhwebane’s conduct was “dismissive, high-handed, biased and procedurally irrational and unfair” in the conduct of the lifeboat investigation.
Update: July 30 2023
This article has been updated with additional information.
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