IMPEACHED | When the public's protector plays politics
By Jan Gerber
“I would be purely transparent in my dealings. I’m apolitical and unbiased, therefore my judgments won’t be biased,” an analyst at the State Security Agency (SSA) called Busisiwe Mkhwebane told a parliamentary ad hoc committee selecting the next Public Protector on 11 August 2016.
While that committee, and the National Assembly, with the exception of the DA, were suitably impressed to appoint Mkhwebane as Public Protector, in the years that followed several courts and ultimately a parliamentary impeachment inquiry would come to a different conclusion.
And seven years and one month later, on 11 September 2023, the National Assembly took a historic vote, accepting the impeachment inquiry’s recommendation that the same Mkhwebane is removed from her post, with 318 votes to 43 votes.
The following day President Cyril Ramaphosa sent the letter that sealed Mkhwebane’s fate as the first Chapter 9 head to be removed in South Africa.
Mkhwebane took office in October 2016, days after her predecessor Thuli Madonsela released a report called State of Capture which started to lift the veil on the state capture project and would – after a court battle by then-president Jacob Zuma – result in the Zondo Commission, which laid the depravity of state capture bare.
But at this time, state capture was still in full swing, and any outposts offering resistance had to be squashed. One such outpost was the Office of the Public Protector. Another was the financial sector, including the South African Reserve Bank.
Madonsela couldn’t complete an investigation into the into apartheid-era bailout given to Bankorp (later taken over by Absa in 1992) by the SA Reserve Bank and why the government did not implement the findings of an investigation by CIEX.
Eight months into her term in office, Mkhwebane released an explosive investigative report on the matter.
In her report’s remedial action, she ordered that the chairperson of the Portfolio Committee on Justice and Correctional Services "must initiate a process that will result in the amendment of Section 224 of the Constitution, in pursuit of improving socio-economic conditions of the citizens of the Republic…”
This, she said, would be done "by introducing a motion in terms of Section 73(2) of the Constitution in the National Assembly and thereafter deal with the matter in terms of section 74(5) and (6) of the Constitution".
Evidence before the Section 194 Committee has it that Mkhwebane obtained the wording for this remedial action from the SSA. According to her, she sought the spy agency’s economic advice to prevent an amendment that would cause instability. However, her prescribed remedial action tanked the value of the rand.
It was also not the last time that the SSA’s spectre appeared in the committee.
Another investigation Mkhwebane inherited from Madonsela, was into the Gupta’s infamous Vrede dairy farm scam.
In contrast to the Zondo Commission later (and investigative media reports), Mkhwebane didn’t make any findings against former Free State premier and ANC secretary-general Ace Magashule, former Free State agriculture MEC Mosebenzi Zwane, who the Zondo Commission would later label a "Gupta minister" for his role as Zuma-appointed minister of minerals and energy.
Zwane is also one of the ANC MPs who voted for Mkhwebane’s removal.
While Mkhwebane avoided making findings against the Magashule and Zwane, flagbearers of the RET-camp, she seemed hellbent on making findings against Ramaphosa and his lieutenant Pravin Gordhan.
73 judges have ruled against Mkhwebane, and she’s tried (and failed) to get 14 of them impeached
By Karyn Maughan
Over 70 judges ruled against Busisiwe Mkhwebane during her term as Public Protector, but she has refused to accept any responsibility for that – and instead tried to harass the judges who criticised her with baseless accusations of impeachable gross misconduct.
Evidence led in Mkhwebane’s impeachment inquiry starkly revealed her animosity towards judges who had delivered some of the rulings that had led to her fitness to hold office being investigated. It also demonstrated just how far she would go to orchestrate public attacks on them.
Using taxpayers’ money, the then Public Protector paid “fugitive from justice” Paul Ngobeni thousands of rands to write articles disparaging judges like Sulet Potterill and Ronel Tolmay as incompetent racists – while not admitting that her office was paying for this allegedly “independent” analysis.
Ngobeni’s legal advice was so bad that it led to the Constitutional Court finding that Mkhwebane had deliberately edited the wording of the Executive Ethics Code to justify finding that President Cyril Ramaphosa had “inadvertently” misled Parliament – when the words of the 2000 Code only made reference to “wilful” misleading.
The courts would chastise Mkhwebane for wrongly finding that the then deputy president had violated the Code by mistakenly stating that a payment to his election campaign by corruption-accused Bosasa CEO Gavin Watson was for consultancy work done by Ramaphosa's son Andile.
But, apparently unwilling to concede that she should not seek legal advice from someone who remains unable to practice law in South Africa, Mkhwebane doubled down – and laid a completely unjustified gross misconduct complaint against Justice Chris Jafta over the apex court majority's dishonesty finding against her.
In other words, she wanted a justice with an impeccable record to face impeachment because he had found her to be dishonest. This while insisting that she should not be impeached because the multiple scathing rulings given against her were just “opinions” based on “wrong facts”.
Her gross misconduct complaints arguably also reflect her frustration with judges who ruled in favour of her most frequently targeted political opponents.
In addition to going after Jafta for a ruling that supported Ramaphosa, Mkhwebane laid a gross misconduct complaint against Potterill at the Judicial Service Commission over the allegedly “disparaging remarks” the judge made in her ruling in favour of Minister Pravin Gordhan in the SARS "Rogue Unit" interdict case.
The investigative unit was falsely branded a “Rogue Unit” by participants and proponents of state capture.
In yet another display of ironic incompetence, the then Public Protector also launched a scathing attack on Potterill for correcting her statement that the Executive Ethics Code included the phrase “inadvertently mislead” in relation to her findings against Gordhan.
Mkhwebane accused Potterill of “deliberately” omitting the words ‘inadvertently mislead’” from the Code when the judge granted Gordhan’s application for an interdict against the enforcement of her later invalidated “SARS Rogue Unit” report.
Judges Selby Baqwa, Annali Basson and Leonie Windell found that this attack on Potterill was “simply astonishing”.
“The Public Protector’s entire model of investigation was flawed. She was not honest about her engagement during the investigation. In addition, she failed to engage with the parties directly affected by her new remedial action before she published her final report. This type of conduct falls far short of the high standards required of her office.”
Constitutional Court majority's (Reserve Bank personal costs appeal)
In quotes
“The Public Protector either failed entirely to deal with the allegations that she was irresponsible and lacking in openness and transparency, or, when she did address them, offered contradictory or unclear explanations.”
“Her inability to comprehend and accept the inappropriateness of her proposed remedial action constitutes ineptitude.”
Gallo Images
Gallo Images
“The failures and dereliction of duty by the Public Protector in the Estina matter are manifold. They speak to her failure to execute her duties in terms of the Constitution and the Public Protector Act. In my view her conduct in this matter is far worse, and more lamentable, than that set out in the Reserve Bank matter. At least there her failures impacted on institutions that have the resources to fend for themselves. In this instance her dereliction of her duty impacted on the rights of the poor and vulnerable in society, the very people, for whom her office was essentially created. They were deprived of their one chance to create a better life for themselves.”
“The Public Protector’s bias against Mr Gordhan and Mr Pillay is manifest. Having regard to the manner in which the Public Protector simply dismissed out of hand and completely ignored and irrationally discarded hard facts and clear evidence, it is clear that she approached her investigation with a preconceived notion, determined to make adverse findings against Minister Gordhan and Mr Pillay, thereby promoting the false rogue unit narrative.”
“[The Public Protector’s] approach to each investigation must be with an open mind, and impartial. She should not rush to conclusions, but should tread carefully. If she does not, she runs the risk of undermining the very reason for the existence of the office of the Public Protector. She risks losing the confidence of the public. The Public Protector did not engage meaningfully with the submission of the president…she recklessly ignored evidence at her disposal.”
“The Public Protector’s report reveals that, on the facts placed before her, she accepted that the President did not wilfully mislead Parliament. This meant that he could not have violated the Code. The Public Protector then changed the wording of the Code to include “deliberate and inadvertent misleading” so as to match with the facts. Having effected the change in the Code, the Public Protector proceeded to conclude that the President had violated the Code. It is unacceptable that the Public Protector did what no law had authorised her to do.”
Constitutional Court majority on Mkhwebane CR17 report
Busisiwe Mkhwebane was one of 14 candidates interviewed for the position of the Public Protector. On 20 October 2016, she held her first media briefing.
Mkhwebane found that Pravin Gordhan had violated the Constitution while he was the Minister of Finance during a press conference held at her offices in Pretoria, on 24 May 2019.
Mkhwebane at the Constitutional Court during judgment on her investigation into the SA Reserve Bank’s apartheid-era Bankorp bailout on 22 July 2019. The Constitutional Court upheld that Mkhwebane be held personally liable for some of the costs in her litigation against the Reserve Bank and Absa.
Mkhwebane, in January 2020, requested the Parliamentary process, which seeks to remove her from office, be temporarily stopped.
Advocate Busisiwe Mkhwebane during the Section 194 Inquiry in Parliament. President Cyril Ramaphosa suspended her on 9 June 2022.
(Photos by Gallo Images)
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IMPEACHED was created by Jan Gerber and Karyn Maughan and edited by Qaanitah Hunter. Production and graphics by Sharlene Rood.
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