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Mkhwebane has until May 22 to respond to incompetence, misconduct charges

11 May 2022 - 20:13
Public protector Busisiwe Mkhwebane had gone to the high court seeking an interim interdict, to put the brakes on an impeachment process against her in parliament and to prevent her possible suspension by President Cyril Ramaphosa. File photo.
Public protector Busisiwe Mkhwebane had gone to the high court seeking an interim interdict, to put the brakes on an impeachment process against her in parliament and to prevent her possible suspension by President Cyril Ramaphosa. File photo.
Image: ANTONIO MUCHAVE

Public protector Busisiwe Mkhwebane has until May 22 to respond to the charges brought against her in a motion tabled by the DA when it called on parliament to probe her fitness to hold office.

An independent panel chaired by retired Constitutional Court justice Bess Nkabinde found that there is enough prima facie evidence of incompetence and misconduct against Mkhwebane and that parliament should probe her competence as public protector.

It emerged on Wednesday that parliament has already written to Mkhwebane, giving her the opportunity to respond to the allegations that she is incompetent and that she is guilty of misconduct.

The special Section 194 committee has also asked her to indicate whether she intends to be represented by a legal adviser or another expert at the inquiry.

Section 194 of the constitution deals with the removal from office of a head of a Chapter 9 institution, which includes the public protector.  

In a letter dated April 22, inquiry chairperson Richard Dyantyi informed Mkhwebane that should she not provide written responses to the charges, the inquiry will proceed with its hearings based on the evidence and information available to it which includes the motion, accompanying evidence, her representations to the Nkabinde panel and the report of the panel together with any witness statements, if applicable.

The special committee decided to proceed with the inquiry into Mkhwebane's fitness to hold office despite her second rescission application in the Constitutional Court. The court last week refused to rescind its previous judgment against her which cleared the way for the impeachment process to proceed against her.

The inquiry’s terms of reference provide for the public protector a right to be heard in her own defence and to be assisted by a legal practitioner or other expert of her choice. She will also be afforded an opportunity to call witnesses and may also cross-examine any witnesses called by the evidence leaders or subpoenaed by the committee.

Sworn statements from the witnesses the evidence leaders have identified and who have agreed to make statements will be provided to her at least seven days before the appearance of the witnesses. The committee will be able to subpoena witnesses who do not agree to make statements or to testify before the inquiry.

The committee has provisionally set down four days for her appearance, July 26-29. Additional hearing days will be added if necessary.

Mkhwebane noted,  “with regret”, the decision to proceed with the impeachment inquiry in July.

She said while a lawful inquiry should proceed as a soon as possible, the decision to start an inquiry in the present atmosphere, “which is littered with allegations of conflicts of interest, illegality and even alleged corruption and other criminal conduct, is totally unacceptable”.

Mkhwebane said the outcome of chief justice Raymond Zondo’s investigation into allegations of corruption implicating Ismail Abramjee and one or more people in the Constitutional Court, which will have “a huge bearing” on all the related processes, should be awaited by all reasonable people and institutions.

“No legitimate court or parliamentary step ought to be taken until the outcome of the pending investigation is known.

“The public protector will therefore leave no stone unturned in the quest for justice, the vindication of the independence of the judiciary and the rule of law. It is her duty to protect the public from alleged wrongdoing and or criminality by any person or public institution even at the highest level of the state,” she said.


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