Long road to impeachment: Mkhwebane is guilty as charged – here’s a breakdown of the damning findings

31 Jul 2023

Suspended Public Protector Busisiwe Mkhwebane has been found guilty of four charges of misconduct and incompetence by a parliamentary committee that began hearings more than a year ago.

Section 197 multiparty committee members, minus the EFF, the UDM and ATM, finalised deliberations on Sunday and agreed with an earlier opinion by an independent panel that there is enough prima facie evidence of misconduct and incompetence.

Committee chair Qubudile Dyantyi announced in a statement that the weekend deliberations would inform the draft and final report which would be adopted before being sent to Mkhwebane for her written response.

So far, Mkhwebane has missed three deadlines to respond to written questions sent to her by committee members and the evidence leaders, advocates Nazreen Bawa and Ncumisa Mayosi.

Read more in Daily Maverick: Mkhwebane misses inquiry deadlines while lawyer bounces back after sudden hospitalisation

Dyantyi said the committee had found that evidence presented to it for more than a year sustained the charges of misconduct and incompetence “in some respects”.

He added that “we will provide the PP with a final audit before adopting the final report that will be sent to the National Assembly”.

The independent panel, led by retired Constitutional Court judge Bess Nkabinde together with advocates Dumisa Ntsebeza and Johan de Waal, was unequivocal in its findings that there was prima facie evidence to support the charges and to challenge Mkhwebane’s fitness to hold office.

Not impartial

With regard to the SARS “rogue unit” report, members agreed that evidence “feeds the narrative that Advocate Mkhwebane was not impartial”.

The committee also recommended that Mkhwebane’s possession of a classified report by the inspector-general of intelligence was “unlawfully received and perused” and that this amounted to misconduct.

Mkhwebane had relied on the report as the bedrock for her SARS investigation. It was dropped off at her offices, the committee heard, by EFF deputy leader Floyd Shivambu. The then Public Protector claimed at the time that this had been done anonymously.

Read more in Daily Maverick: 2014 Radebe report into ‘rogue unit’ based on discredited witnesses, sheds light on genesis of attack on SARS

With regard to her investigation into the then ANC deputy president Cyril Ramaphosa’s CR17 campaign funding, the committee found Mkhwebane “did not conduct the investigation in a manner that ensured impartial or independent conduct”.

Mkhwebane had relied on the wrong “ethical code” in arriving at her determination in that instance, it noted.

The appointment of the late Sibusiso Nyembe as a “political adviser” as well as the suspended Public Protector’s reliance on Paul Ngobeni “as a consultant” and Kim Heller and Professor Sipho Seepe as “communications experts”, were also highlighted by the committee.

Dyanti said the intention of the committee was to convene a “sign-off meeting” on Friday or Monday, but this would be confirmed.

The historic and unprecedented process for the impeachment of the Public Protector was part of a protracted 17-step process, with the final chapter being the vote.

The independent panel had found “substantial information” that constituted evidence of incompetence.

‘Sustained incompetence’

The most glaring, it noted, was “evidence demonstrating that the PP grossly overreached and exceeded the bounds of her powers in terms of the Constitution and the PPA (Public Protector Act) by unconstitutionally trenching on Parliament’s exclusive authority when she directed Parliament to initiate a process to amend the Constitution”.

After examining at least six of Mkhwebane’s reports, the independent panel found that there had been “sustained incompetence” on her part, which had suggested “an inability to learn from mistakes by adopting a more careful approach”.

On the Vrede Dairy matter, the independent panel found that Mkhwebane, “amongst other things, altered the final report and gave the premier (at the time Ace Magashule), who was implicated, the discretion to determine who the wrongdoers were; the PP removed the referral to the SIU (Special Investigating Unit) and AG (Auditor-General) from the final report and provided an untruthful explanation to the review court as to why this was done…”

The committee has concurred with this.

There were 17 long, drawn-out steps which led to this historic Section 194 inquiry, named after the section in the Constitution that deals with the removal from office of the heads of institutions established to support democracy.

The last step will be a vote in the National Assembly on the inquiry committee’s recommendation. A removal recommendation would require the support of a two-thirds majority in the House.

With regard to a charge of misconduct and/or incompetence related to staffing matters in the office of the Public Protector South Africa, Mkhwebane was also found guilty.

Seven PPSA officials had been threatened or had faced disciplinary action during her tenure and it was former CEO Vussy Mahlangu who had been responsible for this reign of terror.

Throughout the inquiry advocate Dali Mpofu, when he still appeared on behalf of Mkhwebane, had branded all of them as “disgruntled” with “an axe to grind”.

These were people, Mpofu suggested, who could not live up to Mkhwebane’s high standards.

With regard to the astronomical legal bills and expenditure that have piled up during Mkhwebane’s tenure, the committee found she had displayed misconduct and incompetence in that she had mismanaged resources. This had prejudiced administration and resources of the Chapter 9 institution.

The suspended public protector's term officially ends on 12 October and the nomination process to appoint a successor is under way. DM

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South Africa

Not impartial

‘Sustained incompetence’