Mkhwebane warns 'overzealous' MPs against removing her

22 August 2018 - 14:20 By Andisiwe Makinana
Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Image: Esa Alexander

Public Protector Busisiwe Mkhwebane has warned Parliament against instituting a process to have her removed from office‚ saying threats to dismiss her on the basis of what is reflected in her reports constituted interference with the functioning of her office and was tantamount to a criminal offence punishable in terms of the law.

In a hard-hitting 25-page submission to the National Assembly’s justice and correctional services portfolio committee‚ to which her office accounts‚ Mkhwebane instead urges the committee to apologise to her for “unseemly attacks” which have been directed at her office for alleged incompetence and for the accompanying threats of removal.

If the process goes ahead‚ she wants the “overzealous” MPs who have previously made utterances and adopted firm positions against her to recuse themselves from taking a decision in the matter. She is concerned that otherwise a fair hearing before those MPs may not be possible.

Mkhwebane seemed to suggest it was undermining and threatening the constitutionally guaranteed independence of her office to probe her based on her decisions‚ while the committee did not do the same with the decisions of judges.

She argued that two former chief justices had on occasion had to remind Parliament about respect for the independence of judges‚ and by extension adjudicators charged with constitutional responsibility such as herself. “It is apposite that I highlight at this stage the unfair treatment offered to the office of the Public Protector as compared to the treatment that is offered to judges [two offices which are given constitutional independence].”

DA chief whip John Steenhuisen lodged a complaint with National Assembly Speaker Baleka Mbete‚ requesting that the National Assembly initiate procedures to remove Mkhwebane from office.

This followed a high court judgement that she had grossly over-reached her powers‚ had shown poor understanding of the law and of her own powers and had sacrificed her independence and impartiality with regards to the Absa/Bankorp report. When Steenhuisen appeared before the committee in June‚ he argued that sufficient grounds existed to‚ at the very least‚ warrant an inquiry into Mkhwebane's fitness to hold office.

In her submission‚ Mkhwebane argued that fitness to hold office is not a ground for removal of the Public Protector as alleged by Steenhuisen and that the committee “must go beyond proving displeasure with my performance”.

“This committee's displeasure at my performance is not enough to warrant a removal. My performance must be gauged against objective standards‚ which Steenhuisen must establish.”

She listed these standards as:

• The level of the job performance required

• that the standard was communicated to her

• that suitable instruction and/or supervision was given to enable her to meet the standard

• that she were unwilling to or incapable of meeting the standard

• and that she was warned that failure to meet to the standard would result in her removal.

She argued that the DA's dissatisfaction about her appointment to the position of the Public Protector‚ which was being improperly and “deceivably” linked with her performance‚ was not enough to warrant her removal from office.

“For this committee to start the removal process‚ there must be some serious misconduct or substantial incompetence and the onus of proving just cause rests with Steenhuisen‚ who has dismally failed to discharge that onus or any of the objective standards listed‚” she said.

Mkhwebane highlighted her performance‚ saying that in the 20 months since she took office‚ she has published 50 reports‚ that only 12 of them were taken on judicial review and that none has been reviewed and set aside by a court.

“Only some remedial actions in my report (the Absa/CIEX report) were reviewed and set aside by the court of law. My findings about the illegality of the Bankorp/Absa lifeboat remain unchallenged and are legally binding‚ since my report has not been set aside.” She added that taking a public protector report for a judicial review did not mean that the Public Protector is incompetent or incapable of performing her functions.

Mkhwebane also took issue with the committee proceeding with Steenhuisen's complaint while she was appealing the high court judgement.

She characterised the invitation to appear before the committee and answer Steenhuisen's allegations as a gross violation of her rights‚ as she was appealing the basis for Steenhuisen's complaint. She also questioned why Steenhuisen‚ who had complained to Mbete on the basis of the high court judgement‚ did not disclose to Mbete and the justice committee that appeals were pending on the matter‚ including disclosing that a supreme court of appeals judgement “undermined” a major part of the "narrative" against her.

“What would happen if the committee were to heed Steenhuisen's unwise and or unlawful importunings‚ hold a hearing and remove me‚ only to have the SCA or Constitutional Court vindicate me after the fact?” she asked.

The committee met on Wednesday morning but it could not consider Mkhwebane's submission‚ as MPs only received it after 11pm on Tuesday night.

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