Busisiwe Mkhwebane. Picture: SUPPLIED
Busisiwe Mkhwebane. Picture: SUPPLIED

The DA will once again attempt to have Busisiwe Mkhwebane removed as public protector.

DA chief whip John Steenhuisen said on Thursday that the DA has written to speaker of the national assembly, Thandi Modise, to request for the institution of removal proceedings against Mkhwebane.

The public protector can be removed by parliament on a finding of “misconduct, incapacity or incompetence” and two thirds of the national assembly must support the vote.

The DA’s latest request to have her removed follows a damning judgment by the High Court in Pretoria on Monday, which reviewed and set aside Mkhwebane’s report on the Gupta-linked Vrede dairy farm project and declared it unconstitutional and invalid.

The court further declared that in investigating and reporting on the matter, Mkhwebane had failed in her duties under the Public Protector Act and the constitution.

“This is but one example in a long list of Mkhwebane’s failures in her role as public protector,” Steenhuisen said. He, as well  as others, said Mkhwebane admitted to stepping outside of her mandate by recommending changing the constitution regarding the mandate of the SA Reserve Bank.

This was in reference to her handling of the probe into the apartheid-era loan the Reserve Bank gave to Bankorp, which is now part of Absa. That report was reviewed and set aside, and it was found that the public protector did not understand her job.

“We have long stated that Mkhwebane is not the right person to serve as the head of such a critical Chapter 9 body,” Steenhuisen said. He said it was for this reason that the DA has submitted another request to the speaker in terms of section 194 of the constitution, to have her removed.

The DA failed to have her removed earlier in 2019, when the majority of members of parliament’s justice committee voted against the request. 

“Over the past three years, Mkhwebane compromised the integrity of the office of the public protector by showing a poor understanding of both the law as well as of her own powers. In addition to this, she has also brought the independence of her office into question,” Steenhuisen said.

Public protector spokesperson Oupa Segalwe said Mkhwebane was not surprised by the DA's attempt.

“This is, after all, the same party that never supported her appointment from the outset, accusing her of being a spy—a claim they are still failing in court to substantiate two years later,”  Segalwe said.

He said the DA “speaks from both sides of the mouth”. 

“Today they call for her removal from office. The very next day the party leader is at our front door, asking the public protector to investigate allegations that the president breached the Executive Code of Ethics, with regular requests for progress reports.”

With the Vrede case, leaked e-mails — that showed the Gupta family had significant control over the farm contract between Estina, a company linked to the family, and the Free State agriculture department — did not form part of the public protector’s investigation of the project.

The leaked e-mails revealed that at least R30m paid to the Guptas via the farm ended up funding the family’s lavish Sun City wedding in 2013. 

Mkhwebane’s report gave no indication of the role played by then Free State premier and current ANC secretary-general Ace Magashule, and then MEC for agriculture and erstwhile mineral resources minister Mosebenzi Zwane.

Judge Ronel Tolmay’s said in her damning judgment this week that Mkhwebane ignored information at her disposal and lacked understanding of the law. The judge said there seemed to be no “logical and legitimate explanation” for narrowing the scope of the investigation.

She said Mkhwebane had failed to properly investigate three complaints laid on the dairy farm matter, a report by the Treasury, as well as the information that had arisen out of the leaked e-mails.