Courts’ comments on Mkhwebane ‘don’t justify incompetence finding’

The Black Lawyers Association (BLA) is of the view that comments by the courts with regards to Public Protector Busisiwe Mkhwebane do not justify a finding of incompetence, misconduct or incapacity.

In a statement this week, the BLA said it respected the independence of the judiciary and was committed to the rule of law.

It, however, differed with the damning judgment that the Constitutional Court handed down against Mkhwebane in the South African Reserve Bank (SARB) case last month.

The Constitutional Court agreed with the Gauteng High Court in Pretoria that her entire ABSA/Bankorp investigation was flawed, and that Mkhwebane had not been honest during her investigation.

In February last year, Mkhwebane’s Bankorp-CIEX report, in which ABSA was ordered to pay R1.125bn, was set aside by the High Court.

In a devastating ruling, it set aside her report as well as the remedial action she had recommended, and ordered her to personally pay some of her opponents’ legal costs, News24 reported.

Mkhwebane will reportedly have to pay about R900,000.

BLA deputy president Baitseng Rangata said there were various instances where judges had themselves been subjected to negative comments by appellate judges without being called incompetent.

“According to the minority judgment, the judges of the High Court, in handling this matter, were worse than the Public Protector. Must the Judicial Services Commission commence disciplinary action against them?” she asked.

Rangata said Mkhwebane’s conduct was criticised in respect of her handling investigations as the public protector and not as a legal practitioner, adding the Legal Practice Council (LPC) thus did not have the jurisdiction to discipline her.

“Otherwise, the LPC will be elevated into a super disciplinary body that will have powers to discipline everybody including the president of the Republic, ministers or MPs only on the basis that they are admitted and enrolled as legal practitioners irrespective of the fact that the conduct in question was not in furtherance of the interest of the legal profession.”

It urged the LPC not to succumb to “external pressure” to discipline Mkhwebane.

“In any event, if the LPC decides to cloth itself with disciplinary jurisdiction over the Public Protector in this matter it must, in order not to prejudice the constitutional rights of the Public Protector, keep its investigations in abeyance until the criminal prosecution and parliamentary process are completed.”

Rangata urged Mkhwebane to fix and rectify whatever was found to be wrong regarding her remedial action, and to issue new remedial action on the matter.

“It is unacceptable that public finances are unlawfully siphoned to private commercial interests and entities like banks without any consequences due to procedural shortcomings in the investigation process.”

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