Panel finds prima facie evidence of Mkhwebane's 'incompetence and misconduct'

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Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Jan Gerber, News24, file
  • There is prima facie evidence of incompetence and misconduct against Public Protector Busisiwe Mkhwebane, an independent panel found.
  • The panel recommends that the National Assembly continues with an inquiry into her fitness for office.
  • The National Assembly will have to first consider the panel's report.

An independent panel found there was prima facie evidence of incompetence and misconduct on the part of advocate Busisiwe Mkhwebane.

The panel recommended that Parliament proceeded with an inquiry to determine whether she should be removed as Public Protector.

In November, Speaker of the National Assembly, Thandi Modise, appointed Justice Bess Nkabinde, advocate Dumisa Ntsebeza and advocate Johan de Waal to the panel.

Their report was released on Monday.

READ | Panel recommends Parliament institute removal proceedings against Busiswe Mkhwebane

The panel considered information such as the motion to institute removal proceedings by DA chief whip Natasha Mazzone, charges preferred against Mkhwebane, numerous reports, pleadings filed in litigation in various courts against and by her, judgments, and Mkhwebane's written response to the panel.

"The findings, following the preliminary assessment, are that there is substantial information that constitutes prima facie evidence of incompetence," reads a statement from Parliamentary spokesperson Moloto Mothapo.

Examples of such incompetence are:
  • the prima facie evidence demonstrating Mkhwebane's overreach and exceeding the bounds of her powers in terms of the Constitution and the Public Protector 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; and
  • sustained lack of knowledge to carry out duties 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.

"The panel also found that there is sufficient information that constitutes prima facie evidence of misconduct."

The examples of misconduct are:

  • Mkhwebane's failure to reveal that she had meetings with the former president of the Republic 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;
  • her alleged modification of the final report and providing untruthful explanation to a review court as to why that 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 the president (the latter found to constitute prima facie evidence of both incompetence and misconduct).

As such, the panel recommends that 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.

The rules require Modise to schedule the recommendations for a decision by the National Assembly.

If the House decides the inquiry should go ahead, it must be referred to a special section 194 committee, for a formal inquiry.

Modise must inform the president of any action or decision emanating from the recommendations.

The process first got underway in December 2019, when Mazzone lodged her motion with Modise days after the National Assembly adopted rules for the removal of the head of a Chapter 9 institution. Mazzone, in early 2020, withdrew her initial motion and replaced it with one bearing more evidence.

ALSO READ | Public Protector Busisiwe Mkhwebane confident she will be cleared in perjury case

On Monday, Mazzone welcomed the panel's finding and urged Parliament to proceed without delay.

"The DA believes that it is of the utmost importance that Mkhwebane is removed as Public Protector and that someone competent, credible and independent is appointed in this post to regain the public's trust in this crucial Chapter 9 institution - and to ensure that once again the interests of the vulnerable would be protected above the interests of the politically connected," Mazzone said in a statement.

The process got interrupted when Parliament had to grapple with the Covid-19 pandemic.

Meanwhile, Mkhwebane unsuccessfully attempted to obtain a court interdict to halt the process, pending her challenge to the rules the National Assembly adopted for such a process.

The pending case does not prevent Parliament from proceeding with its process.

News24 approached the Office of the Public Protector for comment, which will be reported once received. 

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