For the first time in SA’s democratic history, the head of a chapter 9 institution has been removed from office.
At a special sitting in the Cape Town city hall on Monday, the National Assembly voted for the removal of suspended public protector Busisiwe Mkhwebane on the grounds of misconduct and incompetence. A two-thirds majority was required.
The vote came just more than a month before Mkhwebane’s term of office was to end in mid-October. Had she not been axed before then she would have enjoyed substantial benefits.
The ANC, DA, IFP, Freedom Front Plus (FF+), ACDP, GOOD, and National Freedom Party (NFP) voted for her removal. The EFF, UDM, African Transformation Movement, PAC, African Independent Congress and Al Jamah-ah voted against it. Cope leader, Mosiuoa Lekota, abstained, and the other Cope MP, Tebeho Loate, voted for it.
Minister in the presidency for women, youth & people with disabilities Nkosazana Dlamini-Zuma was the only cabinet member absent. MPs supporting Mkhwebane’s firing said she was unfit to hold office. Those opposing claimed the process of the section 194 inquiry that investigated whether she should be removed was unfair and conducted with a predetermined outcome. They said it was a political witch-hunt because of Mkhwebane’s adverse finding against those in power.
The inquiry, which took more than a year, had to decide whether to uphold or reject the prima facie findings of an independent panel chaired by retired judge Bess Nkabinde that there were grounds for Mkhwebane’s removal. Evidence of misconduct was found in her reports on issues such as the Reserve Bank bailing out Absa and the Vrede dairy farm project. She was found to have failed to conduct investigations independently and impartially, and that she mismanaged her staff and resources.
Courts found several of Mkhwebane’s reports wanting and in some instances that she had an inadequate grasp of the law. In some cases, there were personal cost orders against her.
Inquiry chair Qubudile Dyantyi stressed in a speech that in terms of the constitution the public protector is required to be impartial and exercise its powers and perform its functions without fear, favour or prejudice. "Ours was not an inquiry which rubber-stamped the findings of the independent panel or the courts. On the contrary, we heard hundreds of hours of testimony and were seized with copious documentary evidence. Where we have established misconduct and incompetence, we are confident that advocate Mkhwebane did not raise any valid defence for her conduct to sway us," said Dyantyi. The inquiry "unearthed even further examples of misconduct and incompetence".
"I have no doubt that the committee has carried out its functions diligently despite all the challenges and attempts to frustrate the process and undermine the authority of the committee. Allegations that this process was a political witch-hunt are not only patently incorrect, but indeed a perversion of the facts. At all material times, the committee conducted a process that was credible and genuine, yet at every turn we were met with resistance and seemingly little real inclination to account." Dyantyi said that Mkhwebane was not denied the opportunity to be legally represented as claimed by her and parties opposed to her removal. About R36m was spent on her legal fees. Several MPs referred to this wastage of state resources.
DA MP Annelie Lotriet condemned Mkhwebane’s "Stalingrad" tactics to place obstacles in the way of the committee’s work. FF+ MP Corné Mulder said Mkhwebane tried to drag out the process as long as possible, and tried to create the impression she was a vulnerable victim of an evil conspiracy.
Mulder said it was not true that Mkhwebane was being removed because of her adverse findings against members of the executive. Former public protector Thuli Madonsela made similar findings against the former executive but she was not removed, because she was not incompetent.
EFF treasurer-general Omphile Maotwe said the bid to "punish" Mkhwebane in a political witch-hunt was carried out because the political establishment did not like her. She said the report of the committee of inquiry was "hurried and ignored basic principles of fairness". The outcome of the process was predetermined. Mkhwebane had said she was denied legal representation. "We … reserve our right to take this report [of the committee] and the illegal adoption of this report by parliament on judicial review."
UDM leader Bantu Holomisa, who opposed Mkhwebane’s removal, said her sin was doing her job too well, especially her report on President Cyril Ramaphosa’s CR17 election funding campaign. The Constitutional Court rejected the report.
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