Advocate Mkhwebane will not go down without a fight. Photo by Gallo Images

By Staff Reporters

The knives are out and the noose is tightening around Public Protector (PP) Advocate Busisiwe Mkhwebane – but she is not taking it lying down. She has thrown the gauntleton the president.

It is clear that the fight for survival and protection of the office of the Public Protector, will be a protracted one.

President Cyril Ramaphosa expressed his intentions to suspend thePP, Advocate Busisiwe Mkhwebane within 10 days, a week ago.

In the letter, Ramaphosa gave the Mkhwebane 10 days to give reasons why he shouldn’t suspend her. This was days after the Speaker of Parliament Nosiviwe Mapisa-Nqakula announced that a panel set to look into Mkhwebane’s fitness to hold office had concluded its work.

In the letter dated 17 March 2022, Ramaphosa stated that following the resolution of the committee: “It would therefore now be appropriate to consider whether or not you ought to be suspended pending finalisation of the Committee’s work. I therefore hereby ask you to provide me with reasons why I should not exercise my powers in terms of Section 194(3)(a) of the Constitution, in writing, within 10 working days of the date of this letter.”

Within days of receiving the letter,she made very clear her intension to fight and holdfirmon to her job.

“I am not worried. I have indicated several times that, being a believer, God allowed me to be in this position. If this is God’s way of me departing this position, that would be the case. But, as I said, we [are] still consulting with the legal team, charting the way forward.

“I am not afraid to take responsibility, but there should be a fair process throughout”.
Now she has come out guns blazing, saying the president must withdraw his notice of intention to suspend her.

In a letter, dated March 22, Mkhwebane, through her lawyers, said Ramaphosa must “completely step away” from the process of her impeachment, citing a conflict of interest due to her ongoing and previous investigations of the president’s alleged wrongdoing. She claims the correspondence to her by Ramaphosa was unlawful and unconstitutional.

She had given Ramaphosa until 4pm on Wednesday (23 March) to respond and, depending on his response, she would be serving an urgent interdict against her suspension.

Mkhwebane said irrespective of the “numerous grounds why the suspension would be illegal and inappropriate on their merits”, Ramaphosa was not legally entitled or “competent” to take any steps, including the letter he sent her last week.

“The reason is that the president is personally, heavily and multiple conflicted in this matter due to various investigations which have recently been, or are presently being, investigated by her against or concerning allegations of breach of ethics and/or violations of the constitution,” a letter from Mkhwebane’s lawyers reads.

“In that connection, it would be convenient to refer you to, or remind you, of your own concessions made under oath in respect of the so-called Bosasa matter,” she states in the letter.

Bosasa has been identified in the Zondo Commission as a main conduit for corruption or money laundering. This is in reference to the bank records of the CR17 campaign that saw Ramaphosa elected president of the ANC in 2017.

“The conflict, however, arose from the mere fact that investigation took place. It would be a fundamental mistake to adopt the view that the admitted conflict, whether actual or potential, simply disappeared or evaporated with the most recent finalisation of all related litigation.

“It is common cause that the president is also fingered in a few other current investigations involving equally serious and impeachable conduct,” said Mkhwebane lawyers.

This historic development makes Mkhwebane the country’s first sitting PP to face impeachment process and a suspension by a president.

The country’s legal and political minds suggest this matter could have either been handled better or that it has no basis at all. Others say, the impeachment process may be far from over. They say, Mkhwebane, known for her tenacity, may drag this matter for a long as she could. The result could be that the country may endure some considerable time without a PP.

Political Analyst Dumisani Tembe told The Telegram that Mkhwebane’s matter has been badly handled by the country’s political leadership.

“The Office of the Public Protector is one of the crucial Chapter nine institutions established to sustain South Africa’s democracy. The OPP in particular, has been overly politicised in the last few years by the political opposition parties and the factional politics within the ruling party. In this instance, both the chair of the National Assembly and the president ought to have done the most to protect this institution.

“The suspension and the impeachment processes as well the eventual dismissal of the PP might set a bad precedence in term of the governance of the of the chapter nine democracy institutions,” he said.

The PP impeachment process was initiated by the DA in 2020, after several earlier attempts had failed. The Speaker of Parliament appointed an independent panel to investigate and report on whether a case of misconduct, incapacity or incompetence exists against the PP. The panel, chaired by Judge Bess Nkabinde, reported in the affirmative on 24 February 2021.

At the heart of Mkhwebane’s impeachment are charges of incompetence to the effect that she is incapable, incompetent and has poor knowledge and interpretation of the Constitution, as well as criticism of her fitness to hold office in general.

She has lost many judgments earning scathing tongue-lashings from judges. Mkhwebane losses on review of her reports and remedial actions – just between 2019 and 2020 – include Absa-Bankcorp, Estina Dairy Farm, SARS “rogue unit”, Cele vs Mkhwebane; CR17 campaign funds, FSCA Report, taxpayer information and Ivan Pillay’s early retirement.

Political Analyst Professor Sipho Seepe told The Telegram that such charges are nothing but professional dishonesty.

“The legal system operates on the understanding that the legal process is not an exact science. It is a case of hit and misses. This understanding is at the heart of the appeal process. It is based on the reality that another court may come to a different conclusion because judges are not perfect.

“As a matter of fact, it is not uncommon for the High Court and the Supreme Court of Appeal to have their judgments overruled by the Constitutional Court. Even the Constitutional Court Judges have often been found wanting. If these judges get it wrong sometimes, why are we expecting the Public Protector not to falter from time to time as judges do? This is hypocritical and dishonest,” Seepe charged.

He said the PP was a victim of misinformation and misrepresentation because she dared to touch the untouchables like the Bankcorp and President Ramaphosa.

The panel’s report has not been made public. But it is understood that the panel concludes that Mkhwebane does have a removal-from-office case to answer.

According to parliamentary spokesperson Moloto Mothapo, “in its findings, the panel concluded that there is substantial information that constitutes prima facie evidence of incompetence and examples of this included the prima facie evidence demonstrating the Public Protector’s overreach and the exceeding of the bounds of her powers in terms of the Constitution and the Public Protector Act as well as repeated errors of the same kind, such as incorrect interpretation of the law”.

This could be a long-drawn-out process. Another expert, law Professor Omphemetse Sibanda, writing in the Daily Maverick, has warned of a ferocious fight from Mkhwebane.

“We must not expect Mkhwebane to go down without putting up a fierce fight herself or through her admirers in the National Assembly.

“She has shown that she is no pushover, to the point that she sought the help of the Constitutional Court to stop what she considers an unfair inquiry into her fitness to hold office.

“For example, in 2016 in the US, a Brookly Supreme Court Judge was found unqualified to be on the Bench by a Democratic Party screening panel.

“She’s not the brightest bulb in the courthouse, to begin with,” reported the New York Post.

Like Mkhwebane, her problem was that “an abnormal percentage of cases were overturned by higher courts”. Other allegations were that the judge was of poor reputation, offhand, discourteous and apolitical,” she wrote.

EFF leader Julius Malema has offered support to the office of the current Public Protector: “We must be consistent in the protection of the law; we are not protecting Busisiwe, we are protecting the office. Let the Office of the Public Protector be protected.”

Mkhwebane can also count the Black Lawyers Association (BLA) in her corner. The BLA is of the view that the PP’s adverse findings do not justify a finding of incompetence, misconduct or incapacity.

BLA deputy president Baitseng Rangata said there were various instances where judges had themselves been subjected to negative comments by appellate judges without being called incompetent.

“According to the minority judgment, the judges of the High Court, in handling this matter, were worse than the Public Protector. Must the Judicial Services Commission commence disciplinary action against them?” she asked.

Themba Godi, the leader of the African People’s Convention (APC) was candid when he said, “factionalism in the African National Congress (ANC) is negatively affecting the functions of important Chapter Nine institutions such as the office of the Public Protector.”

He held forth that Ramaphosa was quick to serve Adv Mkhwebane with a letter requesting her to provide reasons why she must not be suspended. According to SABC News, Godi pronounced it was a clear indication that Mkhwebane was no longer wanted.

“We must avoid the South Sudan situation, where the crises in the ruling party become a national crisis. The ANC has its own factional battles, and they are now drawing state institutions into this fight. A chapter nine institution is a very critical institution to safeguard our democracy, and it is unfortunate that Advocate Mkhwebane finds herself caught in this fight,” said Godi.

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