Public Protector Advocate Busisiwe Mkhwebane is officially on borrowed time. Parliament’s justice committee has given the green light to begin the process of what could be her removal.
Members of the justice committee agreed within less than five minutes on Mkhwebane’s fate on Tuesday morning when they accepted a proposal to refer the matter to National Assembly Speaker Thandi Modise, who would refer the matter to the rules committee.
As it stands, Parliament is without an exact mechanism for the removal of a Chapter nine boss though it does have the authority to remove the person.
The rules committee is likely to be tasked with first drawing up the process of removing a Chapter nine boss, and this process will have to be adopted by Parliament. The Public Protector will also have to be given the opportunity to make representations.
Tuesday’s move is only the beginning of what could be a lengthy process that will ultimately pass judgment on Mkhwebane’s fitness to hold office.
Justice committee chairperson Bulelani Magwanishe told the committee that he would have a letter sent to the Speaker by the end of the day and would also alert her to the urgency of the matter.
Modise reportedly did not mince her words when the programming committee met last week. In that meeting, the Speaker made it clear that she did not appreciate Mkhwebane’s tone in relation to Parliament.
City Press reported on a scathing 12-page letter that the Public Protector had written to Modise in July. In the letter Mkhwebane rebuked the Speaker for repeatedly failing to “protect” her on numerous occasions in the National Assembly when, she claimed, members of Parliament “cast aspersions on her without a substantive motion”.
Mkhwebane threatened to take Modise’s “unwillingness” to assist her to the courts to seek a declaratory order and interdict to force her to protect the office of the Public Protector.
She concluded the letter by asking Modise to rescind the “unlawful” referral of her matter to the justice committee.
In July the Constitutional Court stopped short of calling Mkhwebane a liar when it found that her
“entire model was flawed and that she was not honest about her engagements during the investigation” relating to the Reserve Bank/Absa matter.
The Public Protector investigated a R1.5-billion loan that the South African Reserve Bank had granted to Bankorp, which had experienced financial difficulties. Bankorp was taken over by Absa.
In 2017, the Public Protector ordered the Special Investigating Unit to recover more than R1 billion on behalf of the central bank from Absa Bank but this report and its remedial action was reviewed and set aside last year.
The Constitutional Court ruled that she failed to engage with the parties directly affected by her new remedial action before she published her final report.
She has also been at logger heads with Public Enterprises Minister Pravin Gordhan and President Cyril Ramaphosa. Mkhwebane found that Ramaphosa misled Parliament and referred her report on his internal campaign funding to the National Prosecuting Authority to investigate possible money laundering. Both Ramaphosa and Gordhan have taken her reports to the courts for judicial review.
Ramaphosa labelled Mkhwebane’s findings as, “irretrievably flawed”.
The matter has become a political football with the Economic Freedom Fighters and some ANC national executive committee members publicly rallying behind the Public Protector.
The EFF was also notably absent from the justice committee this morning.