No way Public Protector can stay after another scathing judgment

Court finds she lacks basic knowledge of the law and its application.

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10/03/2020 14:19:26

                                                                                                                                                                                                            No way Public Protector can stay after another scathing judgment

                                                                                                                                                                                                            The Organisation Undoing Tax Abuse (OUTA) reiterates our call for Public Protector Advocate Busisiwe Mkhwebane to do the honourable thing and vacate her office. This comes after her CR17 donation report was set aside in yet another scathing judgment by the full bench of the Pretoria High Court.

                                                                                                                                                                                                            Judge Elias Matojane, who delivered the judgment, said the court found that Mkhwebane not only committed “material misdirection in her legal approach, but also reached an irrational and unlawful conclusion on the facts before her”.

                                                                                                                                                                                                            Advocate Stefanie Fick, OUTA’s Chief Legal Officer, says the court not only found that Mkhwebane failed to keep an open mind, but also that she failed to investigate the complaints in a fair manner and in terms of her constitutional obligations. “It is clear from the court’s judgment that Advocate Mkhwebane not only lacks the basic legal knowledge and skill required of an official heading up this important Chapter Nine institution, but she also lacks credibility. She misdirected herself on the applicable legal framework and came to irrational and unlawful conclusions on the facts,” says Fick.

                                                                                                                                                                                                            “We therefore repeat our previous calls that Advocate Mkhwebane should do the honourable thing and vacate her office, as she is clearly incompetent and not able to fulfil her constitutional duties.”

                                                                                                                                                                                                            In June 2019, OUTA petitioned the Speaker of the National Assembly for an inquiry into Mkhwebane’s fitness to hold office. This follows “a series of blunders relating to her own conduct or to her investigations and subsequent reports”, OUTA said in the letter to the Speaker. In September 2019, OUTA added a supplementary submission with further information which arose after the initial submission. Read more on this here.

                                                                                                                                                                                                            “OUTA’s initial submission was based on our belief that Advocate Mkhwebane has failed in her constitutional duties, which has been clearly demonstrated in the numerous court findings against her,” says Fick.

                                                                                                                                                                                                            After she lost her appeal in the Concourt (22 July 2019, relating to a personal costs order arising from her report on the SA Reserve Bank matter) and the Pretoria High Court (15 August 2019, relating to a personal costs order in the Estina matter), OUTA also filed a charge of perjury  against Mkhwebane, based on the findings in the Concourt case. The Concourt found that she had mislead the court, presenting “a number of falsehoods” including misrepresentations under oath. Perjury involves the unlawful and intentional making of a false statement during a judicial process.

                                                                                                                                                                                                            Fick says that South Africans deserve better. “We do not deserve a Public Protector who, in the words of Judge Matojane, ‘failed to properly analyse and understand the facts and evidence at her disposal’ and showed ‘a complete lack of basic knowledge of the law and its application’. How long will South Africans have to keep paying for the Public Protector’s mistakes?"

                                                                                                                                                                                                            In February 2020, OUTA filed legal action against the Public Protector over her office’s refusal to grant a Promotion of Access to Information Act request in connection with her May 2019 report which exonerated Deputy President David Mabuza of wrongdoing in the procurement of luxury cars for his use while he was Premier of Mpumalanga.

                                                                                                                                                                                                            Picture: Flickr/GovernmentZA

                                                                                                                                                                                                            OUTA is a proudly South African civil action organisation, that is purely crowd funded. Our work is supported by ordinary citizens who are passionate about holding government accountable and ensuring our taxes are used to the benefit of all South Africans.