Public Protector vows to take legal action in retaliation to House’s ‘unconstitutional’ probe into her fitness to hold office
Embattled Public Protector Busisiwe Mkhwebane is heading to court to halt the parliamentary process to investigate her fitness to hold office – a process that could lead to her ouster.
In addition to the parliamentary process, Mkhwebane is also being probed for perjury by the Hawks, and the SA Revenue Service (Sars) is conducting an audit into her financial affairs.
The impending court challenge follows the failure of Mkhwebane and National Assembly Speaker Thandi Modise to reach an “amicable solution” on the matter.
Speaking to City Press, Mkhwebane said her court papers were being finalised.
She said she was likely to challenge issues such as proper consultation, adequacy, a fair hearing and the independence of a panel set to be appointed to assess the motion against her.
Modise gave the go-ahead for the start of the process to remove Mkhwebane a week ago, prompting the Public Protector to fire off an angry letter in which she stated that the removal rules adopted by Parliament in December were “unconstitutional” and “breach the rights of heads of chapter 9 institutions”.
She said the process was unfair as she had not been given an opportunity to state her side of the story.
Modise shot back on Thursday, insisting in a letter that the process was neither unconstitutional nor unlawful, as Mkhwebane had claimed.
Modise said she was satisfied with the process that Parliament had followed to initiate an inquiry into the Public Protector’s suitability, and it was still early for Mkhwebane to be called to give her side.
Parliamentary spokesperson Moloto Mothapo said on Saturday that he had not seen the letter from Modise, but Mkhwebane’s office confirmed that the communication was received on Thursday.
Mkhwebane told City Press that she was “not against scrutiny” but was perturbed that she had not been given an opportunity to state her side of the story, as had happened in 2018 when the DA unsuccessfully tried to table a motion for her removal.
‘THEY JUST WANT TO DEAL WITH ME’
Mkhwebane said that because her office had recently conducted investigations into allegations of wrongdoing on the part of some members of Cabinet, including President Cyril Ramaphosa, these parties could therefore not be trusted to evaluate her work objectively in their roles as MPs.
“You have had serious comments by very high-profile people like ministers, commenting about this Public Protector. So, they will try everything they can,” she said, adding that “previously, there was a strategy to bankrupt me with these personal cost orders”.
She said: “It is their strategy to make sure that they are dealing with this person. Possibly until such time that I resign, because it is difficult to remove me. But I will not resign.”
She also said some members of the legislature, mostly in the DA, were also conflicted as they had publicly commented on her competence and integrity, something which was against National Assembly rules.
The DA has proclaimed that Mkhwebane failed to act independently in the Absa/Bankorp lifeboat investigation; did not properly interrogate damning evidence against powerful politicians in the Vrede dairy matter; and played into the ANC’s factional politics by investigating the so-called Sars rogue unit case against Public Enterprises Minister Pravin Gordhan and others.
Several court judgments against Mkhwebane have also bolstered the DA’s case, including Constitutional Court judges remarking that Mkhwebane had acted dishonestly during the review case of the Absa lifeboat investigation – although a minority judgment by Chief Justice Mogoeng Mogoeng disagreed.
“You cannot use a court judgment to say that I am incompetent … because the law allows a person who is not happy to take the matter to court,” said Mkhwebane.
While the noose is tightening around Mkhwebane, the ANC caucus is deeply divided.
Former North West premier Supra Mahumapelo, who chairs the portfolio committee on tourism, signalled last week that many ANC parliamentarians would oppose her removal.
He told City Press on Saturday that when the matter came before the party’s parliamentary caucus, a position would be put forward that “it does not happen that the ANC supports a motion of the opposition”.
Mahumapelo said the DA did not have the required two-thirds majority to remove the Public Protector, so the party’s only intention was to divide the ANC.
“I do not understand why some members of the ANC have a problem and speak in corners when we say we cannot work with the opposition,” he said.
He revealed that he was working with a group of MPs to push the DA back.
He said that even before the panel to assess the complaint was established, the group would submit a report to the Speaker, highlighting Mkhwebane’s good work for consideration by the House.
“The report will demonstrate that the performance of the Public Protector is above board. We will also show that the DA has long had an agenda against Mkhwebane as a person.”
He added that all departments and public officials faced challenges.
“We will show that judges also get their rulings overturned, but the same call to remove them from office has never been made.”
Mahumapelo said the adopted rules only showed how the head of a chapter 9 institution must be removed.
“We do not yet have an agreed standard to assess good or bad performance,” he said.
He said what was available to assess Mkhwebane’s performance was the annual performance plan of the Public Protector’s office.
He said such reports should be used together with quarterly reports, annual reports and financials done by the Auditor-General to assess the performance of all state organs and departments.
Mkhwebane also hit out at the Hawks, who are investigating a charge of perjury against her, following a court judgment that said she was dishonest.
She said her work was conducted as “a juristic person”, and therefore disagreed with the charge that she committed perjury in her affidavit for the Absa/Bankorp lifeboat review case.
She said the Mogoeng minority judgment on the matter covered exactly what happened.
She insisted that she had been honest in her affidavits, and that discrepancies that were deemed “lies” under oath were unfortunate mistakes.
She said the Chief Justice was clear in stating that “if you say a person was dishonest, or not cooperating, or misled the court, there are requirements you need to meet, and the issue of mixing ... dates could not be regarded as material to the outcome of the case”.
Mkhwebane said it was curious that, given the number of cases her office had forwarded to the Hawks, her alleged perjury matter was being fast-tracked.
“Why rush? That is a political exercise just to expedite the (parliamentary) removal process.”
Mkhwebane said she would write to Sars commissioner Edward Kieswetter to find out what triggered the audit into her financial affairs.
Sars wrote to Mkhwebane last month, requesting a rack of financial information, including foreign income, sales of assets, bond statements and travel expenses, as well as her passports.
The period under audit is from 2011 to 2018.
Mkhwebane said Sars had not provided her with the new information that may have necessitated an audit from 2011 to 2018.
She has until February 19 to cooperate with the request from Sars.
Mkhwebane said that when she was appointed to office three years ago, she had been vetted for all compliance matters, including taxes.
She maintained – as reported in the media last week – that the Sars investigation appeared to be intended to “lynch” her.
“I have been employed since 1994 and I have been paying my taxes. I was even appointed at [the department of] home affairs, and I have been submitting my tax returns for all these years and declaring.
“I have been a public servant since 1994 and all my records are with all the departments I have worked for.”
She said Sars’ letter simply said that the audit was “based on a risk assessment”.
“But also, you cannot do a tax audit for a period of more than five years,” she said.
She said Sars wanted her to withdraw the allegations of lynching within 24 hours after the media briefing on Tuesday, but the threat has seemingly been withdrawn.
She added that in a follow-up letter, Kieswetter had said these claims against Sars were “highly regrettable” and that the Public Protector could not talk about a fightback as it was damaging to the revenue service’s reputation and could be considered “treasonous”.