Section 194 inquiry: Odds stacked against Busisiwe Mkhwebane

With Al Jama-ah MP Ganief Hendricks emerging as the lone voice arguing against a possible impeachment of embattled Public Protector (PP) Busisiwe Mkhwebane, members of the Committee on Section 194 inquiry into her fitness to hold office voted the four charges against her as “sustained”.

After two long days of debate, aside from Hendricks, committee members were on Sunday unanimously scathing on how the PP has conducted herself during her term – reflecting the depth in the odds against her.

The charges against Mkhwebane were as follows:

• Charge 1: Misconduct in SA Reserve Bank(SARB)/CIEX matter – sustained;
• Charge 2: Misconduct in Vrede matter – sustained;
• Charge 3: Incompetence around Vrede and SARB – sustained;
• Charge 4: Incompetence around victimisation in the office, Sars unit and Bosasa/CR17 – sustained.

The committee is expected to produce and sign off its final report by Friday or next Monday.

Since taking over from her predecessor, Thuli Madonsela, in October 2016, Mkhwebane’s turbulent tenure has been marked by bruising court defeats.

Despite a barrage of charges – which have led to a year of hearings, testimony by several witnesses and many unsuccessful attempts at the recusal of committee chair Qubudile Dyantyi – Hendriks maintained: “These are all frivolous allegations … I cannot see how you can use these to impeach a public protector. I would urge the committee to carefully read her explanations.”

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At the core of what has been seen as the committee’s final deliberations into Mkhwebane – before making a recommendation to parliament – MPs have cited her unlawful obtaining of the inspector-general of intelligence report, legal competence, questionable independence and impartiality, as key factors counting against her continued tenure.

Touching on the grounds for Mkhwebane’s alleged incompetence and misconduct, Democratic Alliance MP Kevin Mileham said: “The issue here is the reliance of the public protector on unsubstantiated allegations, unprovided evidence or information that has not been included in the report or Rule 53 record, with there being no grounds to make a finding.

“It is not factual because someone says: ‘this is the case’. A lot of the so-called facts have relied on emails and allegations made by political parties and not on evidence. That goes to the incompetence of the PP in this matter.”

ANC MP Bheki Nkosi said there were instances where she relied on e-mails “and other information [which] could not be tested”.

“There were no exceptional circumstances for her to do so,” he said.

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Referring to how she had dealt with former SA Revenue Service commissioner Pravin Gordhan, evidence leader Nazreen Bawa said of the “rogue unit”: “She relied on the media and making use of YouTube in making public that she used Section 79 in disclosing that Mr Gordhan was implicated. This was without giving him prior notice – telling the public of all complaints lodged against him without giving him a chance to respond.”

Bawa said the question was whether she had exercised her powers constitutionally without favour, prejudice or impartially.

“She said on YouTube she was investigating a rogue unit as if it was a given, that it was indeed a rogue unit and that people had lost lives.”

MPs expressed concern that despite being a trained lawyer, Mkhwebane had failed to interpret the law, especially failing to differentiate between the Prevention and Combatting of Corrupt Activities Act and the Prevention of Organised Crime Act.

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