Parliament to debate uncharted territory in Public Protector matter

Following increasing calls from the Democratic Alliance (DA) for the removal of Public Protector Busisiwe Mkhwebane, Parliament will meet to discuss the process for an action that has never occurred in South Africa before.

The future of Mkhwebane as South Africa’s Public Protector has been increasingly in doubt over the last few months after she has suffered a number of defeats in the courtroom.

“Mkhwebane lacks both the impartiality and technical ability required to justify her continued occupation of the role of Public Protector, and there is little evidence to suggest otherwise. She must be removed at once,” said DA leader Mmusi Maimane.

While losing cases is probably not a cause to remove the Public Protector on its own, some of the scathing judgments delivered along with the rulings have cast serious doubt on her fitness to hold office.

Mkhwebane’s laundry list of troubles

There is no doubt that it has been a tough couple of months for South Africa’s Public Protector.

Her entire career is in jeopardy after the Constitutional Court upheld a High Court ruling that set aside her findings against Absa and Bankorp in a 2017 report. The ConCourt found that she had done such a poor job that she would be personally liable for around R900 000 of the legal fees from the case.

To make matter even worse, she was also on the cover of the Financial Mail with an accompanying article that claimed she had been flagged by the world’s largest bank HSBC for potential links to transactions to the Gupta family and was apparently being investigated by FNB for violating exchange controls in moving money between countries.

She lost her court case against Cyril Ramaphosa’s decision to interdict her remedial action against Pravin Gordhan. In its judgement, the High Court labelled Mkhwebane as dishonest, irregular, and invalid in her initial findings and once again order her to pay legal costs.

The next step

While the mounting evidence against Mkhwebane is damning, to say the least, there is no precedent for what happens next.

It also appears as if Parliament has been spooked by its other high-profile matter involving Nomgcobo Jiba and Lawrence Mrwebi, formerly of the National Prosecuting Authority (NPA).

Jiba managed to successfully delay Parliament’s decision to reject or endorse President Cyril Ramaphosa’s decision to dismiss her as deputy director of the NPA.

She did this by filing an urgent interdict application, which meant Parliament was not keen to start deliberating on a matter that might be eventually interdicted by the courts.

This has left the national legislature not wanting a repeat performance in the Mkhwebane matter and are, therefore, determined to make sure the rules are set in stone before proceeding.

Mind your manners

While the cases of Jiba and Mkhwebane are not inherently linked, the two are definitely affecting each other.

On top of the above-mentioned determination to get their ducks in a row as a result of what happened with Jiba, the conduct of the two is also being compared by Parliament.

A week previously on 21 August 2019, Parliament agreed to delay its deliberations over Ramaphosa’s decision in the Jiba matter until 19 September 2019.

Parliament appreciated the respectful tone of Jiba’s written application, which is not the case for Mkhwebane.

“If you write to us in a manner ‘Parliament is stupid. You have no right’, we must resist. But if you write to us (in a different tone) you find us more ready, more willing to give space… The tone of the letters from the Jiba group is far from the tone of that of the public protector,” said National Assembly Speaker Thandi Modise according to the Daily Maverick.