LISTEN | Parliament removes Mkhwebane

Adv Busisiwe Mkhwebane becomes the first head of a chapter 9 institution to be impeached

11 September 2023 - 17:29
By Andisiwe Makinana
Former public prosecutor, Busisiwe Mkhwebane.
Image: Thapelo Morebudi Former public prosecutor, Busisiwe Mkhwebane.

The National Assembly has resolved that suspended public protector advocate Busisiwe Mkhwebane be removed from office.

A whopping 318 MPs (79.5%) voted in support of a recommendation for her removal, while 43 voted in her support and one abstained.

Mkhwebane, with only a month left on her seven-year term, becomes the first head of a chapter 9 institution to be impeached.

This follows a recommendation by a section 194 committee, which conducted an inquiry into Mkhwebane’s fitness to hold office, that she should be removed on the grounds of incompetence and misconduct.

Section 194 of the constitution provides for removal from office of a head of a chapter 9 institution on the grounds of misconduct, incapacity or incompetence.


Opening the debate, committee chair Richard Dyantyi sought to defend the process his committee followed.

“From the onset of the inquiry, Mkhwebane indicated that she was participating under protest but was eager for her version of events to be heard by the public. But the committee was denied the opportunity to hear her direct oral evidence due to circumstances beyond its control.

“She never answered the many questions which the committee put to her on the substance of the matters before us, instead adopting an adversarial approach where she maintained that the process was inherently and irreparably unfair and biased, and the outcome predetermined,” said Dyantyi.

Dyantyi reflected on the several procedural objections the committee dealt with.

“Indeed, the journey was not easy, there were many off-ramps, but we soldiered on determined to fulfil our constitutional obligations and not to be held ransom.”

He said he had no doubt the committee carried out its functions diligently, despite the challenges and attempts to frustrate the process and undermine its authority.

He dismissed allegations that the process was a political witch-hunt as not only incorrect but a perversion of facts. Dyantyi said, had any predetermined outcome existed, the committee would not have ploughed the time, financial and human resources into understanding the role of a public protector, the manner in which she investigated the matters which led to adverse findings against her and whether such conduct amounts to incompetence or misconduct as alleged.

“We are confident that Adv Mkhwebane was not denied the opportunity to be legally represented as she claims.

“To the contrary, the committee used its best endeavours to assist her to have access to her stated legal representatives of choice including securing an additional R4m over and above some R32m that had already been spent by her on her extra ordinarily large legal team.”

Dyantyi said he had no doubt that the committee had established, on the facts, that Mkhwebane had “indeed misconducted herself and is incompetent”. “She is therefore not fit for this esteemed office which she has been entrusted.”

The DA’s Annelie Lotriet agreed with the sentiment.

“What we heard during the section 194 hearings leaves no doubt that Mkhwebane cannot proceed as the public protector,” she said.

Lotriet noted that during the more than one year-long inquiry the public protector has used “every trick and tactic in the Stalingrad handbook”.

“A year in which court case upon court case was launched to try and stymie the work of the committee and where the courts found again and again in favour of the committee and parliament. It was a year in which the committee members, the chairperson, the evidence leaders and above all the witnesses were exposed to insults, verbal attacks, threats and a total disregard for the dignity of parliament and its process by the public protector and her legal team,” she said.

This, Lotriet said, was not what the citizens of the country deserve.

She also decried the “reckless abuse” of taxpayers’ money as millions were spent on her legal costs.

Lotriet put the figure at R160m when including cost orders and legal costs. “Money we won’t get back,” she said.

She called on parliament to seek clarity on what reasonable legal assistance means, and the extent to which taxpayers’ money can be used for such purposes.

“It cannot be an open-ended, unlimited and unfettered right and provision.”

FF Plus’s Corne Mulder, one of the longest serving MPs, lauded the process as “comprehensive, most thorough and fair investigation process in parliament since 1994”.

He also criticised the high legal costs spent on Mkhwebane’s legal defence as insensitive towards poor people.

“No-one in SA has ever been assisted in that way. In a country where people are literally starving, and with about 60% youth unemployed, it was revealed in November 2022, that the so-called people’s advocate had received R13.1m of the people’s money to represent the public protector.

“Adv Mpofu displayed disregard for the poor and unemployed by calling the R13.1m peanuts.”

The EFF disagreed.

It slammed the process as “grossly unfair” to Mkhwebane and nothing more than a vindictive political witch-hunt against her.

“Here today, the uninformed majority seeks to railroad all of us to impeach a person not liked by the establishment,” said EFF MP Omphile Maotwe.

“Here today, we see parliament being used to break the law to protect the powerful.”

She said the process was hurried and had ignored basic principles of fairness that are normal and ought not to be negotiable.

Maotwe indicated that the EFF reserved the right to take the report and its adoption by parliament on judicial review.

Mkhwebane faced four charges of misconduct and three of incompetence related to some of her investigations.