Removing Advocate Busisiwe Mkhwebane as the Public Protector
OUTA CALLS FOR THE REMOVAL OF ADVOCATE BUSISIWE MKHWEBANE AS THE PUBLIC PROTECTOR
Overview
Since 2018, OUTA campaigned for the removal of Advocate Busisiwe Mkhwebane as the Public Protector, due to incompetence.
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.
In September 2023, after a parliamentary inquiry and a vote by the National Assembly, the President removed Mkhwebane from her position.
On 2 February 2018, OUTA called on Advocate Mkhwebane to resign as Public Protector, following the judgment of the Pretoria High Court which set aside her report on CIEX, which found that Absa Bank should repay R1.125 billion to the South African Reserve Bank for an apartheid-era transaction. The court found that the Public Protector “does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice”. They said that she “did not conduct herself in a manner which should be expected from a person occupying the office of the Public Protector”, that there was a “reasonable apprehension of bias” and ruled the remedial action recommended in the report to be unlawful. The court took such a dim view of her actions that it took the unusual punitive step of ordering her to personally pay 15% of the SARB costs. See here.
On 10 June 2019, OUTA petitioned parliament, calling for it to set up an inquiry into Advocate Mkhwebane's conduct to investigate her fitness to hold office. "It is our submission that the PP has failed in her Constitutional duties and powers and that earnest action is required before serious damage is caused to the reputation of the institution, democracy and the Republic," said OUTA in the petition. This outlined instances of incompetence and misconduct by Mkhwebane, including: the February 2018 high court judgment overturning her report on Absa and the Reserve Bank; the May 2019 high court judgment against her report on Estina; her apparent disrespect for the Portfolio Committee on Justice and Correctional Services; questionable administration of her office; and perceived lack of impartiality. More than 21 000 people signed a petition supporting OUTA's submission to parliament. The petition is here and a summary is here.
On 27 June 2019, OUTA again called on the Public Protector to resign, after the Constitutional Court found her to have acted in bad faith in the CIEX/Absa/Reserve Bank report, and ordered her to personally pay 15% of the Reserve Bank's costs. See here.
On 22 August 2019, OUTA lodged a criminal complaint at SAPS Hillbrow against Mkhwebane, in connection with allegations of perjury, after the Concourt's judgment of June 2019 found that she had made falsehoods and misrepresentations in that case. This was additional information intended to help the Hawks investigate the case against Mkhwebane. The complaint is here. The annexures are here: Annex A, Annex B, Annex C, Annex D. In December 2020, the Hawks announced they would prosecute Mkhwebane and she would appear in court in January 2021. See here.
On 13 September 2019, OUTA made an additional submission to parliament. This included details of further problems with Mkhwebane's actions, including: the July 2019 high court judgment on the Pumelela Gaming and Leisure report; and OUTA's August 2019 criminal complaint against Mkhwebane. This submission is here. This submission was discussed by parliament's Rules of the National Assembly committee on 8 November 2019 (see here).
On 17 February 2020, OUTA filed an application to demand access to documents used by the Public Protector in her report which exonerated David Mabuza of procurement irregularities while he was premier of Mpumalanga. The application arose from Mkhwebane’s refusal to comply with OUTA’s access to information request in July 2019 in connection with her report on Mabuza. The report, released in May 2019, was on an investigation into the procurement in January 2014 of four official vehicles for Mabuza when he was premier. The PP’s report found the procurement irregular but absolved Mabuza of any blame. OUTA's application is here and more information is
here. On 7 September 2021, the Pretoria High Court ordered the Public Protector's office to provide OUTA with the records. See here.
On 10 March 2020, OUTA again called for Mkhwebane to resign after yet another scathing high court judgment overturning on of her reports. See here.
On 25 March 2020, OUTA again called for Mkhwebane to resign after yet another scathing high court judgment. This court stated that: “All these factors demonstrate clearly that the Public Protector either misunderstood the law or if she understood it, she simply ignored it. That shows the proclivity of the Public Protector’s to operate out of the bounds of the law. She has an inexplicable deep rooted recalcitrance to accept advice from senior and junior counsel. The Public Protector acted unreasonably, arbitrarily and in bad faith when she issued the 2019 subpoena.” See here.
On 12 October 2020, OUTA again called for a parliamentary inquiry into Mkhwebane when she lost another court case. See here.
On 9 February 2021, OUTA again called for Mkhwebane's removal, after a report in which she cleared Malusi Gigaba of abusing his powers as Minister of Home Affairs when granting early naturalisation to the Gupta family. See here.
On 18 October 2021, OUTA submitted a formal objection to the President's Nominations Panel for the new Chief Justice of the Constitutional Court, objecting to the shortlisting of Advocate Busisiwe Mkhwebane and Judge John Hlophe. See here. Neither made it further in the process.
The removal of the Public Protector
On 26 November 2019, the Committee on Rules of the National Assembly drew up rules for the removal of heads of Chapter Nine institutions, which had not previously existed. See here.
On 3 December 2019, the National Assembly adopted the rules for removal of office-bearers in institutions supporting constitutional democracy (Chapter Nine institutions). 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. See here.
On 21 February 2020, the National Assembly voted to initiate an inquiry into Mkhwebane's fitness to hold office.
In November 2020, the Speaker of the National Assembly 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.
On 7 April 2021, the National Assembly announced the names of the MPs would would sit on the Section 194 Enquiry committee looking into Mkhwebane's fitness to hold office. The committee was subsequently expanded to 36 members to represent every party in the National Assembly and give them proportional voting rights. See here and here.
On 20 July 2021, the committee held its first meeting and elected 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 are not appointed to rubber stamp any predetermined decisions, but we will be guided by applicable rules and the law to conduct our work.” See here.
In March 2022, after legal challenges against the committee were overturned, the committee resumed work. For more on the committee, see here.
In July 2022, the Section 194 committee started its investigation into Mkhwebane.
On 24 August 2023, the Section 194 committee voted to adopt its final report, which found Mkhwebane guilty of misconduct and incompetence, and recommended her removal. This report was forwarded to the National Assembly. This was the committee's recommendation: "The Committee for section 194 Enquiry, having duly considered the Motion recommends that the National Assembly, based on the Committee’s findings of both misconduct and incompetence, resolve to remove Adv Busisiwe Mkhwebane from the office of Public Protector as provided for in section 194 (1) (c) of the Constitution." See the committee's statement here and its report here.
On 11 September 2023, the National Assembly voted to adopt the Section 194 committee's report, voting in favour of removing Mkhwebane from office. A total of 318 MPs voted to remove Mkhwebane (well over the two-thirds required), 43 voted against and one abstained. See the statement from parliament here. OUTA welcomed this vote.
On 13 September 2023, President Ramaphosa announced that he had removed Mkhwebane from the Office of the Public Protector on the grounds of misconduct and incompetence. See here.