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OUTA

Public Protector: Advocate Busisiwe Mkhwebane

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OUTA CHALLENGES THE PUBLIC PROTECTOR ADVOCATE BUSISIWE MKHWEBANE

Overview

The Organisation Undoing Tax Abuse has submitted to Parliament copies of all the negative court findings against the Public Protector, to back up our earlier complaint.

In June 2019, OUTA petitioned Parliament for an inquiry into the Public Protector’s conduct and competence. More than 21 000 people signed a petition supporting OUTA's decision to take action.

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

Parliament has now drafted and approved rules for the removal of the heads of Chapters Nine institutions (including the Public Protector). In terms of rules, the Speaker appoints an independent panel that will establish whether there are grounds for the Public Protector’s removal or not.

In November 2020, the Speaker appointed the panel with the following members: retired Constitutional Court judge Bess Nkabinde, who chairs the panel, advocate Dumisa Ntsebeza SC, and advocate Johan de Waal SC. This panel completed their report by the end of February 2021 and handed it to the Speaker. On 16 March 2021, the National Assembly agreed with the panel and resolved that a formal section 194 inquiry by a committee should go ahead.

The committee has 35 members and began with the committee process by electing its chairperson. On 20 July 2021, the Committee elected Mr. Qubudile Dyantyi as Chairperson. Mr. Dyantyi said: “The real work to investigate whether or not the Public Protector is fit to hold office will only start now. We have not been appointed to rubber-stamp any predetermined decisions, but we will be guided by applicable rules and the law to conduct our work.”

The committee will require a quorum of 18 members to take decisions as per rule 162(2) of the National Assemble Rules.

If the Committee recommends that the Public Protector should be removed, the question must be put to the National Assembly, which must then vote on it. The Public Protector can only be removed if two thirds of Parliament agrees.  

OUTA reiterates its stance that the Public Protector has failed in her constitutional duties towards the citizens of this country and has brought an important Chapter 9 Institution into disrepute. Her time is running out. Fast.


“OUTA has recently issued an application against the PPSA for disclosure of documents relating to a report on the Premier of Mpumalanga [view more here].”

 Refer again to our story dated 25/03/2020, [view more here].

 “OUTA is concerned that should the PPSA remain in office the harm caused to the establishment credibility will be tarnished irrevocably – this cannot be taken for granted”

 “OUTA calls for the removal of the Public Protector as her continued display of incompetence cannot reasonably withstand our country’s constitutional values or the rule of law. See OUTA’s stance on the PPSA’s competence [view more here]”

 

OUTA has made several submissions to parliament, regarding the Public Protectors conduct, these include the following cases:

•           ABSA

•           The Estina Dairy Project

•           Phumelela Gaming and Leisure

•           Minister of Water and Sanitation 

  • OUTA filed its court application on 17 February 2020 for the disclosure of records relating to the Public Protector’s report, entitled “A Report on an Investigation into Allegations of Irregular Procurement of Official Vehicles for the former Premier of Mpumalanga Province, Honourable David Mabuza, by the Mpumalanga Office of the Premier”.

  • OUTA approach the court after the PPSA failed to provide us with a formal response to our PAIA request, which OUTA submitted in July 2019.

  • OUTA sought a variety of evidentiary documentation which the PPSA consulted in order to finalise the report. However, OUTA has reason to believe that the PPSA has misconstrued her powers and failed to properly consider potential contraventions of the Public Finance Management Act, 1999 (“PFMA”).  

  • Subsequent to issuing of the application, the matter was placed on the unopposed roll (Pretoria High Court) for 5 November 2020. However, during the course of October 2020, the PPSA provided OUTA with a substantial amount of the requested records, rendering continuance of the PAIA court application, superfluous.

  • OUTA was also informed that a an application for the review and setting aside of the PPSA’s report had been instituted by Dr. Mkhize (then Director-General of KZN Province).

  • As such, OUTA removed the matter from the roll and is now awaiting receipt of the remainder of the documents.

  • OUTA is now in the process of reviewing the documentation received and will consider involvement in pending litigation and/or further investigating the PPSA’s competence to hold office.

  • OUTA has subsequently reviewed the documentation received and considered the pending litigation, however in November 2020, when OUTA made the decision to remove the matter from the unopposed roll. It was done on the undertaking from the PPSA in good faith, that they would provide all the information. To date the PPSA has failed to provide the information and continues to ignore the follow ups by our attorneys. The matter has been re enrolled and set down for 7 September 2021. 

  • On 07 September 2021 the court ruled in OUTA’s favour. The court ordered the Public Protector to furnish OUTA with the requested within 15 days from the date of the granting of the court order. OUTA will proceed to serve the court order to the office of the Public Protector.

  • Court order was served to the office of the Public Protector and they filed an explanatory affidavit, explaining that they cannot the rest of the documents that we requested. Furthermore, the report has been set aside by the court following Dr Mkhize's court application in the North Gauteng High Court.


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Lorem Ipsum is simply dummy text of the printing and typesetting industry. Lorem Ipsum has been the industry's standard dummy text ever since the 1500s, when an unknown printer took a galley of type and scrambled it to make a type specimen book. It has survived not only five centuries, but also the leap into electronic typesetting, remaining essentially unchanged. It was popularised in the 1960s with the release of Letraset sheets containing Lorem Ipsum passages, and more recently with desktop publishing software like Aldus PageMaker including versions of Lorem Ipsum.

HERE ARE SOME OF THE COURT DOCUMENTS

A copy of OUTA's original petition to Parliament on 10 June 2019 calling for Advocate Mkhwebane's removal is here.

A copy of OUTA's additional submission to Parliament on 13 September 2019 is here.

OUTA's criminal complaint against Advocate Mkhwebane on 22 August 2019 is here. The annexures are here: Annex A, Annex B, Annex C, Annex D.


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