FAQS AND ANSWERS: REMOVING THE PUBLIC PROTECTOR IN TERMS OF THE CONSTITUTION

1. Adv Mkhwebane claims that she did not have legal representation since March 2023

At no stage has the Committee denied Adv Mkhwebane the right to be legally represented. The Committee halted its proceedings after 31 March 2023 and assisted in ensuring that Adv Mkwhebane was availed additional funds for purposes of concluding the Enquiry. These efforts were made notwithstanding the significant expenditure incurred by the Public Protector South Africa on her legal costs and litigation up to that stage.

Notwithstanding being provided with a further R4 Million Rand, Adv Mkwhebane failed to brief Seanego Inc. her attorneys of record who then nevertheless indicated that they will no longer participate in the process.

A process was followed for the appointment of new attorneys of record of her choice being Chaane Attorneys. They failed to brief counsel insisting that they required time to familiarise themselves with all the records of the Enquiry notwithstanding that all witnesses had already appeared and were cross examined and Adv Mkwhebane had already submitted her written statement (in two parts) to the Committee.

When Mr Chaane took ill, the mandate of Chaane Attorneys was withdrawn but Adv Mkhwebane rejected the appointed Office of the State Attorney as her instructing attorney on the basis of conflict of interest notwithstanding that their services would result in cost savings and the Office of the State Attorney, Pretoria played no role in the Enquiry.

Adv Mkhwebane also queried if the additional R4 million allocated for her legal fees included counsel, travel, security and accommodation. Chaane Attorneys were thus once again briefed following the sudden recovery of Mr Chaane but still refused to brief counsel except for purposes of bringing a second recusal application against the Chairperson.

In June 2023, the Committee was forced to adopt and forge a new path to deal with its proceedings. The Committee put in place concrete deadlines to ensure that it adhered to its constitutional responsibility to perform its work diligently and without delay. It provided Adv Mkwhebane with the opportunity to submit additional information, respond to written questions in writing or orally and make a closing argument which she failed to do. The Committee agreed to the new way forward as it balanced Adv Mkwhebane’s right to fairness against the Committees obligation to perform its Constitutional functions diligently and without delay.

On 3 August 2023, Chaane Attorneys withdrew as Adv Mkhwebane’s attorneys of record without having briefed counsel except for purposes of bringing the 2nd recusal application against the Chairperson. Adv Mkhwebane elected to thereafter appoint Motsoeneng Bill Attorneys who similarly indicated they cannot brief counsel until they familiarise themselves with the record and required an indefinite postponement to do so.

The Committee provided Adv Mkwhebane the opportunity to comment on its draft report but this was not done.

The Committee was not in control of the services rendered by Adv Mkwhebane’s legal representatives and it was her responsibility to ensure that she availed the resources provided to her for purposes of meaningfully participating in the Enquiry.

During the Enquiry Adv Mkwhebane has been represented by three different sets of attorneys of record and during the period in which she did not have access to state funds the Committee did not proceed notwithstanding that it was not the responsibility of the Committee to secure funding. The Committee cannot be blamed for the failure of Adv Mkwhebane to exercise her rights.

2. She claims the Committee started its work with a predetermined outcome.

The Committee exercised and executed its task, as per the National Assembly Rules read together with the Constitution. The Committee had no predetermined outcome on the enquiry which is evidenced by the extensive fact-finding exercise that it undertook.

Ever since the Committee’s hearings began on 11 July 2022 with opening statements by the evidence leaders and Adv Mkhwebane’s legal representatives, Adv Mkhwebane made it clear that she was participating in the proceedings under protest and viewed it as a politically motivated campaign against her.

Had the Committee had a predetermined outcome it would not have been necessary for it to call so many witnesses and conduct a protracted process to establish the facts. The Committee made it clear that it would not place blind reliance on the numerous adverse court findings against Adv Mkwhebane or the report of the Independent Panel but would seek to establish facts.

This thorough report of the Committee illustrates the extent to which the Committee engaged with evidence in reaching its recommendation. Contrary to the narrative that there was a predetermined outcome, the Committee absolved Adv Mkwhebane of some of the sub-charges and provides detailed reasoning where it found her to have misconducted herself or to have acted incompetently.

3. She further claims the Section 194 process is a deliberate attempt to tarnish her image.

The Committee conducted a fact-finding enquiry into whether Adv Mkhwebane misconducted herself and/ or was incompetent as alleged and if so whether those grounds as established warranted her removal from office.

Much of the complaints against her were based on adverse court rulings in some of her most politically charged investigations – Bossasa/CR17, the SARS investigating unit, South African Reserve Bank/CIEX and the Vrede dairy farm project. There was no attempt by the Committee to tarnish her image and she was provided with ample opportunity to defend the charges against her and explain her conduct to the Committee.

4. Adv Mkhwebane brought two recusal applications against the Chairperson. The latest one was based on bribery allegation solicited by the late Hon Tina Joemat-Pettersson.

The Chairperson of the Committee carefully considered both recusal applications and provided detailed written responses for his decision not to recuse himself. The majority of the Committee, on both occasions, supported the decision of the Chairperson and declined to remove him as Chairperson.

5. Adv Mkhwebane claimed she is strategizing with legal team to possibly interdict the process from continuing in the NA.

Adv Mkwhebane has brought numerous unsuccessful legal challenges in respect of the s194 process. Parliament has a responsibility to ensure that it conducts its work diligently and without delay. The Committee is confident that the process it followed was fair and therefore any attempt at interdicting Parliament from performing its Constitutional functions will be defended.

Notwithstanding these threats, it is noted that Adv Mkwhebane ultimately did not seek to interdict the National Assembly from proceeding with its debate and vote.

6. She claimed she will take the committee Report on Review

Adv Mkwhebane has a constitutional right to take the Report on review. The Committee remains confident that its process was fair and that the threshold for removal has been met. The Committee has always acknowledged that the process was novel and has far-reaching consequences and as such is susceptible to legal challenge.

7. Some political parties indicated they will take the report on Review.

Any interested party who is of the view that they have grounds to review the Report are entitled to do so.

8. The suspended PP claims she was informed that her legal funding was stopped although the process had not been completed.

The cost of Adv Mkhwebane’s legal representation was borne by the PPSA who committed, despite its view that it was not legally responsible to bear such costs, to funding the reasonable costs of her defence. This commitment was subject to confirmation by the accounting officer in terms of the PFMA and the Treasury Regulations that there is sufficient funding to cover the costs of legal services and any estimated legal costs are reasonable and budgeted for. The legal costs far exceeded what the PPSA had budgeted for and the PPSA provided Adv Mkwhebane with advanced notice that it would not be able to continue paying in the new financial year. The process was delayed by various factors outside of the control of the Committee or the PPSA and had it been concluded without delay the available funds would have sufficed.

9. Issues regarding the gratuity payout at the end of her term keep arising.

The question of gratuity is not a matter that is determined by Parliament, nor was it an issue considered by the Committee. The gratuity is not relevant to the question of whether a Chapter 9 office bearer has misconducted themselves or is incompetent.

10. Explanation of process in the National Assembly

The National Assembly programming committee resolved that the debate and vote on the Committee Report should be dealt with in a physical sitting at the Cape Town City Hall. Parliament will use the roll-call voting system. The procedure requires each MP to answer with a “yes” or “no” when called upon. The Committee Chairperson will table the Report in the National Assembly for debate. After the debate if there is no consensus, the matter will be decided by vote. The removal of a Public Protector requires a supporting vote of at least two-thirds (267) of MPs.

11. When will the National Assembly debate the Report?

The debate and voting on the Report is scheduled for Monday 11 September 2023.

12. What is the process after the vote?

A two-thirds (267 of MPs) majority vote will be required to remove the Public Protector. If the motion succeeds in the National Assembly, the President will be informed of same and in terms of s194(3)(b) of the Constitution he must remove Adv Mkwhebane from office.

PARLIAMENT’S TIMELINE

On 21 February 2020 the then Chief Whip of the Democratic Alliance, Ms Natasha Mazzone, MP tabled a motion in the National Assembly for removal of the Public Protector from office on grounds of misconduct and incompetence.

On 25 November 2020 the Speaker appointed an Independent Panel to conduct a preliminary assessment of the motion.

On 24 February 2021 the Panel comprising of Justice B Nkabinde (Chair), Advocate D Ntsebeza SC and Advocate J De Waal SC submitted its report that there is prima facie evidence that Adv Mkhwebane committed misconduct and is incompetent. It recommended that the charges in the motion be referred to the Committee for purposes of conducting an enquiry.

On 7 April 2021 the Committee for Section 194 Enquiry was established. The motion was referred to the Committee to determine if there are grounds for the removal of Advocate Busisiwe Mkhwebane as Public Protector as alleged in the motion.

On 13 May 2022, an Invitation to the Public to Furnish Evidence to the Committee for Section 194 Enquiry (Call for Evidence) was published.

On 11 July 2022 Committee’s hearings began with opening statements by the evidence leaders and Adv Mkhwebane’s legal representatives. By March 2023, the Committee heard oral evidence from 24 witnesses, 22 of whom submitted sworn statements. Adv Mkwhebane gave oral evidence in respect of her Part A statement.

The Committee provided Adv Mkwhebane with written questions which she did not respond to. It also provided her with an opportunity to submit further information and to make a closing statement, but these opportunities were not availed. She was further provided with a copy of the draft report and invited to make written submissions on the draft report by 21 August 2023. No written submissions were received.

22 August 2023 the Committee adopts the final Report.

23 August 2023 the Committee Chairperson holds a wrap-up media briefing.

31 August 2023 NA Programme Committee Meeting scheduled a date for a debate on the Report

11 September a full physical Sitting of the NA will hold a debate on the Report.

Source: Parliament of South Africa