Public protector Busisiwe Mkhwebane. Picture: ESA ALEXANDER
Public protector Busisiwe Mkhwebane. Picture: ESA ALEXANDER

The DA’s push to remove public protector Busisiwe Mkhwebane from office suffered a major setback after the majority of members of parliament’s justice committee voted against the party’s proposal.

The DA has been calling for the removal of Mkhwebane for alleged incompetence and misconduct.

This comes amid concern that the crucial Chapter 9 institution, which is meant to guard democracy and fight corruption, was fast losing credibility under Mkhwebane’s watch.

Committee chair Madipoane Mothapo said it would hold off any process to remove the public protector pending the conclusion of related court matters.

According to a report adopted by the committee on Tuesday, section 194 of the constitution and section 2(1)(c) of the Public Protector Act of 1994 envisage a factual inquiry into the fitness of the public protector.

“It is the National Assembly that must determine that the public protector’s conduct renders her unfit to hold office. This discretion cannot be replaced by the court’s view, however pertinent,” reads the report.

In its push to have Mkhwebane removed from office, the DA cites damning court rulings against her, including one on the Absa-Bankorp report.

In her report, Mkhwebane ordered the Special Investigating Unit to reopen its earlier investigation into the lifeboat granted to Bankorp “in order to recover misappropriated public funds unlawfully given to Absa Bank in the amount of R1.125bn”.

In 2018‚ the high court in Pretoria set aside the remedial action contained in the controversial report and ordered Mkhwebane to pay 15% of the Reserve Bank’s costs in her personal capacity. The Constitutional Court granted Mkhwebane direct access to challenge the constitutionality of the personal costs order made against her. The matter was heard in November and judgment was reserved.

In 2018, the DA and the Council for the Advancement of the South African Constitution brought an application in the high court in Pretoria to have Mkhwebane’s report on the Gupta-linked Vrede dairy farm scandal in the Free State declared unconstitutional and invalid.

The DA labelled the report a whitewash, saying Mkhwebane had failed to investigate politicians implicated in the debacle.

Mothapo said the justice committee noted that legal proceedings were ongoing.

“As such, we believe that it would be premature for removal proceedings to be instituted against the public protector. After careful consideration, the committee has concluded not to support the request [by the DA],” said Mothapo.

DA MP Glynnis Breytenbach said the committee’s report was a disgrace and the party would draft its own minority report on the matter.

The public protector may be removed from office for various reasons including misconduct, incapacity and incompetence. It would require the backing of at least two-thirds of MPs in the National Assembly.

In her written submission to the committee, in response to the calls by the DA, Mkhwebane stated that efforts to remove her were unconstitutional, and called for some MPs who had been openly "hostile" towards her to recuse themselves from deliberations on the matter.

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