Mkhwebane ‘not suitable to sit on any committee where justice is concerned’

While the string of court losses in her previous role as public protector may not hinder advocate Busisiwe Mkhwebane in coming to rational decisions as a member of the parliamentary portfolio committee on justice and correctional services, a legal expert yesterday said the newly minted Economic Freedom Fighters (EFF) MP would be constrained by her oath of office.

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Social media commentary has been divided on those for and those against her appointment.

Council for the Advancement of the South African Constitution executive secretary Lawson Naidoo said Mkhwebane was “now free to be politically partisan”.

“Noting that Miss Mkhwebane is now an MP and, therefore, a politician, she will now be free to be politically partisan – as a member of the portfolio committee on justice and correctional services.

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“However, she should be guided by her oath of office in exercising oversight over the department of justice and in processing legislation that comes before the committee,” said Naidoo.

Mkhwebane ‘not suitable’

But University of Pretoria law lecturer Dr Llewelyn Curlewis was more scathing, arguing that Mkhwebane did not deserve her new role.

“She is not a suitable candidate to sit on any committee where justice is concerned, with her track record having proved it,” he said.

“How many times did she have to be declared unfit and not proper to hold such an important office, before the penny – figuratively speaking – dropped?

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“Her interpretation of the law has, to date been declared ill-considered by numerous courts. But the EFF seems to be desperate if this candidate is the most suitable in their own midst to be appointed by them in this role.”

Before her impeachment by parliament, Mkhwebane, who was appointed public protector in 2016, had numerous bruising battles with courts, with several of her reports overturned.

These included:

• The Estina Dairy farm report reviewed and set aside by the High Court in Pretoria in 2019 for her failure to properly investigate the Gupta-linked project.
• Her report into the so-called South African Reserve Bank (Sars) “rogue unit” was set aside by the High Court in Pretoria in 2020.
• The High Court in Pretoria in 2020 vindicating Police Minister Bheki Cele after Mkhwebane’s 2018 report found gross negligence, improper conduct and maladministration in a 2018 case.
• The full bench of the High Court in Pretoria in 2020 reviewing and setting aside Mkhwebane’s Bosasa report.
• The High Court in Pretoria setting aside the public protector’s report released in March 2019, which found the Financial Sector Conduct Authority and its former board executive, Dube Tshidi, guilty of impropriety and maladministration.
• The Constitutional Court in 2020 dismissed Mkhwebane’s appeal bid related to her ability to subpoena taxpayer information – relating to a case in which her office tried to attain former president Jacob Zuma’s tax records.
• The High Court in Pretoria set aside the public protector’s report that found fault with former Sars deputy commissioner Ivan Pillay’s early retirement payout back in 2010.

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Her 2019 report was challenged by Public Enterprises Minister Pravin Gordhan – who was then Sars commissioner – after it found he was wrong to approve Pillay’s pension with benefits.

– brians@citizen.co.za