How it happened: Tracing the removal of the public protector
by Qubudile Dyantyi
Among the achievements of the sixth Parliament that will be remembered as a first in the history of Parliament is the successful removal of the head of a Chapter 9 institution – advocate Busisiwe Mkhwebane, now the former public protector (PP).
The committee exercised its mandate successfully despite several disruptions resulting from challenges, including several postponements.
Following a motion adopted in the National Assembly (NA) on April 7, 2021, the Committee for Section 194 Enquiry into Mkhwebane’s fitness to hold office was established.
The charges in the motion included allegations of misconduct relating to a PP report involving the South African Reserve Bank and ABSA Bank; misconduct relating to the investigation and reporting on the Vrede Dairy Project; incompetence during both of those investigations, and harassment and victimisation of staff at the Office of the Public Protector, among others.
Initially, the enquiry was expected to last about six months, but the hearings took 14 months to conclude. The committee then adopted its final report recommending to the NA the removal of Mkhwebane from office, based on several findings of serious misconduct and incompetence.
The committee initially started its work on July 20, 2021, but this was put on hold shortly after pending court applications by Mkhwebane to stop the enquiry.
A Constitutional Court ruling early in February 2022 paved the way for the committee to continue, making it clear that there was no legal impediment to prevent the enquiry from continuing.
Following this, the committee held several planning meetings, and this preparatory work continued despite more legal challenges by Mkhwebane.
The committee’s hearings began on July 11, 2022 with opening statements by the evidence leaders and Mkhwebane’s legal representative, advocate Dali Mpofu SC. At this meeting, she made it clear that she was participating in the proceedings under protest.
The committee heard oral evidence from 24 witnesses. In addition, Mkhwebane gave oral evidence concerning Part A of her two-part statement.
During this period, Mkhwebane brought further unsuccessful challenges – two for the recusal of the chairperson, which she argued was biased and a further recusal application against Kevin Mileham, a DA member of the committee.
On March 15, 2023, Mkhwebane started her evidence, and at the start of her testimony she accused both the DA and ANC of joining forces to remove her to stop her from investigating them.
A few days later, the committee had to adjourn again – this time due to her ill health.
After her recovery, and giving evidence for a few more days, on March 31, 2023 – on the sixth day of her testimony – Mpofu informed the committee that the Office of the Public Protector would withdraw its financial support covering Mkhwebane’s legal costs.
The committee resolved on April 3, 2023 to continue with normal meetings while the relevant parties tried to find a solution to the funding challenges. This saw evidence leaders advocate Nazreen Bawa SC and advocate Ncumisa Mayosi contextualising documentary evidence.
The committee was expected to continue with evidence from Mkhwebane on May 9.
The funding challenge had not been resolved, so the meeting could not continue. This trend continued, with several forced postponements due to the same challenge.
Another curveball in May 2023 was the allegation of bribery Mkhwebane’s husband, David Skosana, made against me and other MPs. All implicated parties were later cleared by the Ethics Committee.
By June 3, 2023, the committee heard that the rates for all three of Mkhwebane’s advocates had increased by R12000 a day and that her attorneys were appointed and briefed by Mpofu at R45000 a day.
On June 9, 2023, the committee was forced to postpone its hearing yet again – this time due to Mkhwebane rejecting the newly appointed office of the State Attorneys as her instructing attorneys to brief her counsel, citing a conflict of interest.
On June 16, 2023, I issued an addendum to the directives governing the committee’s work. In terms of the amendments, whether the Public Protector has responded in writing to the questions posed, or given oral evidence or a combination thereof, she could still make a closing argument and would be provided with an opportunity to comment on the committee’s draft report before it is adopted and tabled in the NA.
Mkhwebane failed to meet all deadlines set by the committee.
Toward the end of July 2022, the committee deliberated on the allegations in the motion and resolved to sustain the allegations against Mkhwebane.
A copy of the draft report was provided to Mkhwebane to give input. She did not take up the opportunity.
On August 22, 2023, the committee adopted its final report and recommended to the NA that Mkhwebane be removed from office on grounds of incompetence and misconduct based on the evidence before the committee. At the time of the adoption of the final report, a third set of attorneys was appointed as Mkhwebane’s legal representatives.
At one stage, her attorneys were briefed for 63 days without briefing her senior counsel and bringing a second application for the chairperson to recuse himself.
Thus, despite the additional R4m made available to her to complete the enquiry proceedings, since March 31, 2023 she did not actively participate in any part of the enquiry dealing with the merits of the motion.
It was only after this date and Mkhwebane’s refusal to accept the State Attorney’s assistance that the committee resolved on June 9, 2023 to forge a new path with concrete deadlines to ensure it finalised its mandate.
Mkhwebane still had not met any of the deadlines. She did not even inform the committee that she could not respond.
She acted as though she was above Parliament and not accountable to the institution or to the committee.
The committee at all stages allowed her to give her version and to participate in the process.
Even after she continuously ignored the deadlines, when the committee adopted its draft report, it provided her with a final opportunity to comment.
The committee faced various obstacles that impeded its work, forcing it to extend its programme on several occasions.
Some members viewed this as deliberate attempts by advocate Mkhwebane and her legal team to delay the proceedings and to undermine its authority and function.
The committee intervened regarding her legal funding and legal assistance, although these matters were outside its mandate.
A few weeks after being removed from office, Mkhwebane was sworn in as a Member of the National Assembly for the EFF.
* Qubudile Dyantyi is a Member of Parliament and was the Chairperson of the Committee for the Section 194 Enquiry into Public Protector Advocate Busisiwe Mkhwebane’s fitness to hold office.
** The views expressed here are not necessarily those of Independent Media.
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