Durban - The impeachment of Public Protector (PP) Advocate Busisiwe Mkhwebane, which was delayed by litigation and the Covid-19 pandemic, is about to get under way after a panel of three legal minds said there is prima facie evidence that she is not competent.
The 119-page report of the panel, which included Justice Bess Nkabinde and Advocate Dumisa Ntsebeza, among others, was made a public document on Monday.
Mkhwebane is currently on sabbatical until March 31 to get some "rest".
The motion for the impeachment was first moved by Democratic Alliance (DA) chief whip Natasha Mazzone in February last year, but Parliament Speaker Thandi Modise sought views on whether the were grounds – and the panel said the accusations do hold some water.
Chief among the cases that made the panel give the green light was how Mkhwebane handled the CR17 bank statements case, Bosasa donation to President Cyril Ramaphosa campaign funds, Absa-Bankkorp case and Estina dairy case.
According to the report, the assessment and recommendations are based on information made available to the panel consisting of the motion, charges preferred against the PP, numerous reports, pleadings filed in litigation in various courts against and by the PP, and judgments as well the PP’s written response.
Parliament spokesperson Moloto Mothapo said the findings are that there is substantial information that constitutes prima facie evidence of incompetence.
"Examples of such incompetence are: the prima facie evidence demonstrating the PP’s overreach and exceeding the bounds of her powers in terms of the Constitution and the PP Act, repeated errors of the same kind – such as incorrect interpretation of the law and other patent legal errors, failure to give audi (right to be heard) to the affected persons, incorrect factual analysis, sustained lack of knowledge to carry out duties and/or inability or skill to perform the duties effectively and efficiently as required by the Constitution.
“According to the panel, these instances, cumulatively assessed, meet the threshold of prima facie evidence of sustained incompetence," Mothapo said in a statement on Monday.
According to the statement, the panel also found that there is sufficient information that constitutes prima facie evidence of misconduct. The examples given include Mkwebane's failure to reveal that she had meetings with former president Jacob Zuma and the State Security Agency, to honour an agreement with the SARB thereby displaying non-compliance with a high standard of professional ethics as required by the Constitution, and to investigate the third complaint regarding the alleged involvement of certain politicians in the Vrede Dairy Project.
Also cited is her alleged modification of the final report and providing an untruthful explanation to a review court as to why same was done, as well as her patently wrong findings on money laundering in the CR17 campaign matter and her unexplained doubting of the bona fides of President Cyril Ramaphosa.
"The panel recommends that, for the reasons contained in its reports, the charges based on the findings of prima facie evidence of incompetence and misconduct be referred to a committee of the National Assembly to investigate/inquire (if it so resolves) in terms of section 194 of the Constitution.
"The rules of the assembly stipulate that once the panel has made its recommendations, the speaker must schedule these for decision by the House. If the House decides the inquiry should go ahead, it must be referred to a special section 194 committee for formal inquiry. The speaker must inform the President of any action or decision coming from the recommendations."
Mkhwebane’s spokesperson Oupa Segalwe had not responded to questions at the time of going to print.
Mazzone said they want the process, to remove Mkhwebane from office, to kick-off as soon as practically possible.
“We are pleased by these findings and urge Parliament to institute the removal proceedings against Mkhwebane without delay. During her tenure as public protector, the courts have made damning findings against Mkhwebane, where her fitness to hold this vital post has been called into question numerous times … Her independence and credibility have also been called into question on a number of occasions, and she has failed to inspire trust within the public,” she said.
Political Bureau