12 September 2023

Consideration of Removal of Adv. Busisiwe Mkhwebane, based on the Committee for Section 194 Enquiry findings of both misconduct and incompetence from the office of the Public Protector in terms of s194 of the Constitution.

Honourable Speaker,
Deputy President,
Members of the Executive,
Members of Parliament,
Members of the media,
Fellow South Africans,

To echo the words of the Constitutional Court : the National Assembly, and by extension Parliament, is the embodiment of the centuries-old dreams and legitimate aspirations of all our people.  It is the voice of all South Africans, especially the poor, the voiceless and the least remembered.  It is the watchdog of State resources, the enforcer of fiscal discipline and cost-effectiveness for the common good of all our people. It also bears the responsibility to play an oversight role over the Executive and State organs and ensure that constitutional and statutory obligations are properly executed. …Parliament is the mouthpiece, the eyes and the service-delivery-ensuring machinery of the people.  No doubt, it is an irreplaceable feature of good governance in South Africa.

The Public Protector is established by section 181(a) of the Constitution, as one of the institutions set up for the very important purpose of supporting and strengthening our democracy. The Constitution, in unambiguous terms, provides that the Public Protector is independent and subject only to the Constitution and the law, and it must be impartial and exercise its powers and perform its functions without fear, favour or prejudice. Moreover, the Constitution, enjoins organs of state through legislative and other measures to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness.

The Public Protector, like other Chapter Nine institutions, is accountable to the National Assembly. Accountability is the cornerstone upon which the Constitution is built. It is the pillar that drives our constitutional dispensation. Accountability together with responsiveness and openness are the corner-stones of our democracy and all of these values entrench a culture of justification and explanation of one’s action.  

The Supreme Court of Appeal explained:

‘To ensure a functional, accountable constitutional democracy, the drafters of our Constitution placed limits on the exercise of power. Institutions and office bearers must work within the law and must be accountable. Put simply, ours is a government of laws and not of men or women.

The Committee thus found itself in an unenviable position, one that every South African would hope is never repeated, where it had to hold to account, the very person appointed to investigate impropriety and improper conduct in state affairs. The charges against Adv. Mkhwebane based on the grounds of misconduct and incompetence were serious and related largely to matters in which all South Africans have an interest and which impacted us all. These included alleged misconduct in respect of the reports on the South African Reserve Bank and the Vrede Dairy Project. In addition, there were serious charges alleging misconduct and/or incompetence and relating to:

• the management of internal capacity and resources in the PPSA;
• the prevention of fruitless and wasteful and/or unauthorised expenditure in legal costs;
• failure to conduct investigations independently and impartially and/ or
• deliberately avoiding making findings against or directing remedial action against certain public officials while deliberately reaching conclusions of unlawful conduct and imposing far-reaching remedial action in respect of other officials.

After the former Speaker determined that the Motion was in order it was referred ‘to an independent panel for a preliminary assessment of the matter’. The Panel comprised of retired Justice Nkabinde as Chair, Adv. Ntsebeza SC and Adv. De Waal SC, conducted a preliminary assessment of the Motion and concluded that there was indeed  prima facie evidence of both misconduct and incompetence.

On 16 March 2021 this House agreed to conduct an enquiry into Adv. Mkhwebane’s fitness to hold office on the grounds specified in the Motion and accordingly referred the Motion to the Committee on section 194 Enquiry.

Since the dawn of democracy, this Committee is the biggest committee ever to have been established, with each of the fourteen represented political parties in the National Assembly having voting power. This speaks to the importance and interest in the matter we were charged with.

The enquiry was embarked upon without a blueprint or any precedent to guide us. But we were unanimous in our understanding that our role entailed a fact-finding exercise to establish the veracity of the charges contained in the Motion and whether those facts establish ‘misconduct’ or ‘incompetence’ as defined. We placed no blind reliance on the report of the Independent Panel, aware of the limitations of that body.

We were at all times acutely aware that the Committee had to discharge its function with reference to its constitutional purpose by providing this house with sufficient information to determine whether the grounds as alleged have been established. I have no doubt that the Committee has established on the facts that Adv. Mkhwebane has indeed misconducted herself and is incompetent. She is therefore not fit for this esteemed office with which she has been entrusted. Indeed, our report is detailed and describes with reference to the facts that we adduced why this is the case. Ours was not an Enquiry which rubber-stamped the findings of the Independent Panel or the Courts. On the contrary we heard hundreds of hours of testimony and were seized with copious documentary evidence. Where we have established misconduct and incompetence, we are confident that Adv. Mkhwebane did not raise any valid defence for her conduct to sway us.  In fact, the Enquiry unearthed even further examples of misconduct and incompetence that had this Committee not adduced evidence in the manner that it did, would have never come to the fore.

The committee’s proceedings were guided by the:

• Rules of the National Assembly;
• our Terms of Reference;
• Directives issued by myself as Chairperson; the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 and
• most importantly the Constitution.

The Committee process was inquisitorial in nature. We agreed to utilise the services of evidence leaders, to assist us and empower us by presenting evidence and putting questions to Adv. Mkhwebane and witnesses. The evidence leaders did not play a prosecutorial role and their involvement did not impede or limit the right of members to put questions to Adv. Mkhwebane or any witness. Indeed, our process was robust with high levels of engagement and interaction by our members.

From the onset of the Enquiry, Adv. Mkhwebane indicated that she was participating under protest but was eager for her version of events to be heard by the public, but as it were the Committee was denied the opportunity to hear her direct oral evidence due to circumstances beyond its control. She never answered the many questions which the Committee put to her on the substance of the matters before us instead adopting an adversarial approach where she maintained that the process has been inherently and irreparably unfair and biased, and the outcome predetermined. The committee dealt with several procedural objections and was faced with various obstacles which interrupted and affected our ability to carry out our work. Indeed, the journey was not easy, there were many off ramps, but we soldiered on determined to fulfil our Constitutional obligations and not to be held ransom.

I have no doubt that the Committee has carried out its functions diligently despite all the challenges and attempts to frustrate the process and undermine the authority of the committee. Twenty-four witnesses presented evidence before the committee. Adv. Mkhwebane submitted her own written evidence, and this was considered by the committee together with the many sworn affidavits she has submitted to the various courts who have found her conduct wanting.

The Committee conducted a lengthy and legally sound process which focussed on fact-finding in a manner that was fair to all – including Adv. Mkhwebane, members and the public. The Committee called witnesses and was presented with evidence in addition to the Judgments, which contained serious adverse findings against Adv. Mkhwebane. Had any such pre-determined outcome existed, the Committee would surely not have ploughed the time, financial and human resources into understanding the role of a Public Protector; the manner in which she investigated the matters which have led to adverse findings against her; and whether such conduct amounts to incompetence or misconduct as alleged. We did not arrive at these findings lightly and what the public and fellow members of the Assembly may not have seen, was the hours and hours of diligent and consistent work that took place behind the scenes to try to unpack the charges and understand the context in which it arose.

The drafters of the Constitution allocated the responsibility of making findings in respect of the removal of a Chapter 9 Institution office bearer to a Committee of the NA. There can therefore be no doubt that the s 194 process is uniquely allocated to members of the Legislature. Allegations that this process was a political witch-hunt are not only patently incorrect but indeed a perversion of the facts. At all material times, the Committee conducted a process that was credible and genuine yet at every turn we were met with resistance and seemingly little real inclination to account.

We are confident that Adv Mkhwebane was not denied the opportunity to be legally represented as she claims. To the contrary, the Committee used its best endeavours to assist her to have access to her stated legal representatives of choice including securing an additional R4 Million over and above the some R32 Million that had already been spent by her on her extra ordinarily large legal team. Despite this, since April this year Adv Mkwhebane has not participated in any meaningful manner in the Enquiry and even as the Committee concluded its proceedings she had failed to take any steps to secure her counsel. The Committee was obliged by section 237 of the Constitution to ensure that its constitutional obligations are performed diligently and without delay and indeed by the very rules of this House which mandated us to complete our work in a reasonable time. Once it had become clear that Adv Mkwhebane would not avail herself to deal with the merits of the matter we were seized with, the Committee had no choice but to proceed in a manner that balances Adv Mkhwebane’s rights to a fair process with the Committee’s Constitutional obligations.

This process culminated in a report which shows incontrovertible evidence that Adv Mkwhebane has misconducted herself and is incompetent. Thus notwithstanding the noise that has surrounded the work of the Committee, the cries of unfairness, of there being a predetermined outcome; of this being a political campaign to protect ‘untouchables’ what rings crystal clear through all this and what cannot be denied is that Adv Mkwhebane, on the facts as established, is not fit and proper to hold the high office of Public Protector.

Acknowledgments

The success of our work has been made possible by the:

• Honourable members of Section 194 Committee with their robustness and commitment to duty;
• Evidence leaders of the Committee, Advocates Bawa SC and Mayosi
• Parliament’s Constitutional and Legal Services Office;
• Entire support staff: the Committee secretariat, content advisors, researchers, media services; catering, transport and protection services;
• Media for covering the work of the Committee and ensuring that the public were kept abreast;
• Each of the twenty-four witnesses; and
• the independent panel for their pointed work.

Most importantly we thank the members of the South African public. The work we do in holding those that wield public power accountable, is not always easy. But we persevered, steadfast in our commitment to you our people.  We believe that we have executed our duties to the best of our abilities. Where we have fallen short we will learn from it. I have no doubt that this process will forever be recorded in the history books of our nation, as a reminder to every person who performs a public function that you are accountable for your actions. With humility, herewith, I table before this august house the report of the Ad Hoc Committee on the Section 194 of the Constitution for consideration.

Footnote

Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (CCT 143/15; CCT 171/15) [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (31 March 2016).

Ibid.

Ibid

South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others (393/2015) [2015] ZASCA 156; [2015] 4 All SA 719 (SCA); 2016 (2) SA 522 (SCA) (8 October 2015).