Mkhwebane sinks ever deeper into the mire

Public Protector Busisiwe Mkhwebane’s protest that she never fiddled with her predecessor’s Vrede dairy farm provisional report was inexplicable, considering she failed to explain why she changed some of its remedial actions.

This criticism came from the Council for the Advancement of the South African Constitution (Casac), in the wake of allegations of serious misconduct by a whistleblower from her office in a sworn statement under the Protected Disclosures Act.

Mkhwebane has hogged the headlines for all the wrong reasons since taking over from her predecessor, Thuli Madonsela, with experts saying the latest allegations that she ordered changes to the report on the Gupta-linked scheme were a real test of her integrity.

According to Lawson Naidoo, executive secretary of Casac, revelations that Mkhwebane allegedly ordered the removal of information implicating ANC secretary-general Ace Magashule and former minister Mosebenzi Zwane were serious.

News24 and Amabhungane claimed the whistleblower also alleged that Mkhwebane ordered the removal of information relating to the intended beneficiaries of the Gupta-linked scheme, which saw over R250 million in public funds channelled through the holding company Estina.

The affidavit was reportedly sent to National Assembly Speaker Thandi Modise and President Cyril Ramaphosa’s office on Friday.

According to the whistleblower, Mkhwebane’s controversial Bankorp-Ciex June 2017 remedial action directing parliament to amend the constitution to change the mandate of the South African Reserve Bank came directly from a State Security Agency official.

“These are very serious allegations that questions her impartiality on the Vrede dairy matter,” Naidoo said. “She has not been honest with the courts regarding the Vrede matter. The allegations are an indictment on her.”

Mkhwebane’s arguments were disingenuous that “there was nothing to remove” as the names of then Free State premier Magashule, and Zwane, who was then MEC for the province’s department of agriculture, were not in the provisional report, he said.

“She has not explained why she changed some of the provisional remedial actions – prepared by her predecessor – which was slammed by the courts.”

The revelations, which Mkhwebane has said were part of a plot to oust her, came days after she lost her bid to appeal the scathing judgment that overturned her report on the dairy project, with High Court in Pretoria Judge Ronel Tolmay slapping her with a second personal cost order.

The Helen Suzman Foundation’s legal counsellor, Anton van Dalsen, said if found to be credible, the latest allegations put Mkhwebane in a difficult position.

“She is in a far worse position … and the latest allegations will be part of those to be probed by the panel that will be tasked to probe her fitness to hold office.”

The National Assembly’s rules committee has adopted draft rules for the removal of the head of a Chapter 9 institution, paving the way for an inquiry into Mkhwebane’s fitness to hold office.

Calls from the DA and civil society organisations for her removal to be expedited has heightened in the wake of damning court findings against Mkhwebane.

Parliament has received a letter from DA chief whip Natasha Mazzone stating that proceedings for Mkhwebane’s removal would be started when parliament resumed in the new year.

Democracy in Action, an organisation running a crowd-funding initiative to cover Mkhwebane’s legal fees of about R900,000, excluding the recent cost order, says it will stay in Mkhwebane’s corner.

Chair Thabo Mtsweni said those who pointed to her wrongdoing must come with proof.

Mkhwebane said the allegations were baseless and the work of disgruntled current and former employees.

Her spokesperson, Oupa Segalwe, has questioned the timing of the allegations.

“Some of the issues relate to reports finalised two years ago… these people sat with that information and only came with all of that now when there is pressure on the speaker to remove her,” he said.

Public Protector Busisiwe Mkhwebane’s more than two years in office has not been smooth, with courts finding her dishonest and acting in bad faith:

• June 2017: Mkhwebane releases the Bankorp/CIEX report, finding that the South African Reserve Bank’s R1.125 billion bailout of Bankorp between 1985 and 1995 was unlawful and that Absa should pay back the money.
• August 2017: The South African Reserve Bank successfully challenge and had Mkhwebane’s remedial action to change its constitutional mandate set aside.
• February 2018: Mkhwebane’s Bankorp-CIEX report ordering Absa to pay back R1.125 billion is set aside by the High Court in Pretoria.
• February 2018: Mkhwebane releases her controversial report on the Vrede dairy project in the Free State.
• March 2018: Mkhwebane loses her application for leave to appeal a previous judgment that she should personally pay 15% of the costs incurred by the South African Reserve Bank in the Bankorp-CIEX matter.
• February 2019: Mkhwebane survives a second DA proposal that parliament starts procedures for her removal.
• May: The high court finds that Mkhwebane failed in her duties to investigate and report on the Vrede dairy project.
• May: Mkhwebane finds Minister of Public Enterprises Pravin Gordhan guilty of “improper conduct” for approving then-deputy SA Revenue Service commissioner Ivan Pillay’s early retirement and payout.
• June: The justice and correctional services portfolio committee is asked to consider the DA’s third request to have Mkhwebane’s fitness for office probed.
• July: Mkhwebane finds that a “rogue unit” was established and operated illegally within Sars and ordered that President Cyril Ramaphosa take action against Gordhan for his conduct. Gordhan successfully interdicted the implementation of Mkhwebane’s remedial action, pending the outcome of a review application.
• July: Mkhwebane finds that Ramaphosa deliberately misled parliament in relation to a R500,000 donation to his 2017 ANC presidential campaign.
• August: The High Court in Pretoria finds that Mkhwebane’s office, as well as she, was responsible for some of the legal costs in her personal capacity in the Vrede dairy farm case.
• This month: Mkhwebane loses her application for leave to appeal the scathing Estina dairy farm judgment, with a personal cost order.

How the process to remove Public Protector Busiswe Mkhwebane from office can unfold:

• According to the constitution, for an inquiry into Public Protector Busisiwe Mkhwebane’s fitness to hold office to be held, the grounds for her removal may include incapacity, incompetence or misconduct.
• An MP must bring such a motion with all supporting documents.
• Speaker Thandi Modise will then check if the motion meets the requirements and that there is a prima facie case, and refer it to an independent panel. The panel may include a judge with legal competencies for such an assessment.
• The panel will, within 30 days, deliver its assessment to the National Assembly and, if the recommendation is accepted, a committee will be tasked with conducting an inquiry.
• The final report of the committee must contain findings and recommendations, including the reasons for these findings and recommendations.
• If the recommendation is that she should be removed from office, the question must be put to the National Assembly for a vote.
• The National Assembly must then inform President Cyril Ramaphosa if the required majority supports the motion.

– siphom@citizen.co.za

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