Busisiwe Mkhwebane’s affidavit is inaccurate, says deputy public protector

Statements made under oath to the Western Cape High Court by suspended public protector Busisiwe Mkhwebane are “inaccurate and untrue”, her deputy says in an affidavit submitted to the court on Thursday.

Deputy public protector Kholeka Gcaleka, acting in Mkhwebane's position, has weighed in on the urgent litigation between Mkhwebane, President Cyril Ramaphosa and the DA over whether the protector should be immediately allowed to return to work after the court finding last week that Ramaphosa’s decision to suspend her was unlawful.

Gcaleka said her office “does not take issue” with the order on the suspension, but it had a duty to correct the inaccuracies and untruths by Mkhwebane.

Mkhwebane had said that the public protector’s investigation under the Executive Members Ethics Act into possible ethics breaches by Ramaphosa had been unduly delayed because of her suspension and her suspension had delayed and destabilised the investigation.

However, Gcaleka said: “No facts [have been given] in support of these allegations.”

Mkhwebane said there had been a march to the office of the public protector to demand answers about the Phala Phala investigation. There was a “perceived delay” in attending to the matter, said Mkhwebane.

“But perceptions are not facts. As investigators at the office of the public protector, we all know that. Perceptions might be supported by facts but none is put up in the affidavit,” said Gcaleka.

Gcaleka added Mkhwebane’s position on the delay was inconsistent with what she had previously told the cabinet in 2017, about how long these kind of investigations took. She had said that investigations into Executive Members Ethics Act matters took much longer than the 30 days envisaged in the act and that “the earliest period within which a report can be completed ... is within six months”.

“The public protector has never been able to complete and report on an investigation under the Executive Members Ethics Act in six months,” she said.

Gcaleka said she had done what Mkhwebane had herself proposed to parliament on the issue. She had reported to the speaker in 30 days on the status of the investigation, that it had not yet been completed. This was the process that “had been applied consistently by advocate Mkhwebane and her predecessors”.

It was not supposed to be an interim report on the substance of the investigation — “as being demanded by those criticising my handling of the investigation”, said Gcaleka.

“I do not intend to risk the integrity of the investigation by issuing any ‘initial’ or interim report in terms of the EMEA (on any information or documentation obtained during the investigation this far) … The premature release of a report could create the risk of undermining any findings reached by the PPSA,” she said.

Gcaleka said Mkhwebane’s position was inconsistent with the turnaround times of her other investigations and those of former public protector Thuli Madonsela.

There were eight ongoing investigations under the Executive Members Ethics Act that began before Mkhwebane was suspended, said Gcaleka. 

• One, into a complaint against Mpumalanga arts MEC Thandi Shongwe, is 47 months old.
• Another, lodged by the DA’s David Maynier into former finance minister Nhlanhla Nene, is 46 months old.
• Another, by the EFF’s Floyd Shivambu against public enterprises minister Pravin Gordhan, is 21 months old. 

The Phala Phala investigation is the most recently lodged.

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