Busisiwe Mkhwebane: enemy of the state?

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Dishonest conduct which falls short of the standard required; a flawed model of investigation; a willingness to put forward a number of "falsehoods"; acting in "bad faith". These are just a few of the choice phrases used by the Constitutional Court last month to describe public protector Busisiwe Mkhwebane’s probe into the apartheid-era loan made by the SA Reserve Bank to Bankorp (now part of Absa).

That was Mkhwebane’s first major decision as public protector and it stunned the country, precisely because she made an order she never had the power to make: directing parliament to change the constitution to alter the Reserve Bank’s mandate. The Constitutional Court gave it short shrift.

Nor was it Mkhwebane’s only smackdown from the courts.

Last August, the high court in Pretoria criticised her "superficial reasoning and erroneous findings" on the Reserve Bank’s mandate. And in May, the high court set aside her report on the Gupta-linked Vrede dairy project, declaring it "unlawful, unconstitutional and invalid".

The sentiment was again underscored this week, when her report ordering President Cyril Ramaphosa to take "disciplinary action" against public enterprises minister Pravin Gordhan was interdicted by the high court. Judge Sulet Potterill declared Mkhwebane’s findings "nonsensical", "contradictory" and "inexplicable".

But it was the Constitutional Court ruling, ordering her to cough up in her personal capacity for her botched Bankorp report, that has intensified calls for her removal.

Nongovernment group Accountability Now has asked the Legal Practice Council (LPC), the statutory regulator, to consider striking Mkhwebane from the roll of advocates. As advocate Paul Hoffman wrote in his submission: "It is intolerable that an officer of the court should be found to be lying on oath."

The LPC is now considering this request.

But the 49-year-old Mkhwebane is no ordinary advocate. She is the head of an institution enshrined in chapter 9 of the constitution, specifically meant to strengthen democracy and hold the powerful to account. Her predecessor, Thuli Madonsela, who clashed with former president Jacob Zuma, illustrated what this office could do.

But Mkhwebane is also accountable to parliament, which appointed her in 2016 ahead of the widely favoured judge Siraj Desai. And it is the National Assembly of parliament which can remove her — provided two-thirds of its 400 MPs agree.

Last year, the DA tried, and failed, to have Mkhwebane axed. Now DA chief whip John Steenhuisen has made a second request to the speaker of the National Assembly, Thandi Modise, to institute removal proceedings. It would entail the National Assembly’s justice committee holding an inquiry into her fitness to hold office.

Bulelani Magwanishe, the ANC MP who chairs the justice committee, told the FM that the committee would discuss its approach to this case on September 3.

"I know people are saying we have not been prioritising the matter," Magwanishe says. But he says the committee has other tasks, including a budget vote, and dealing with ousted National Prosecuting Authority officials Nomgcobo Jiba and Lawrence Mrwebi, who were fired in May.

"It’s not that we don’t want to deal with it, but there are timeframes," he says.

The public protector may be removed from office on only three grounds: misconduct, incapacity or incompetence.

First, the justice committee must conduct an inquiry, and then make a recommendation to the National Assembly, which can table a resolution calling for someone’s axing. It’s not meant to be easy — after all, politicians slighted by Madonsela may have just as easily sought to have her axed on far more spurious grounds. There are 11 members on the justice committee: six from the ANC, two from the DA and one each from the EFF, the IFP and the ACDP.

Magwanishe says: "It is important that we apply ourselves."

Steenhuisen says parliament has to tread carefully, given how litigious Mkhwebane has proved to be.

"I think that parliament should make sure that it errs on the side of caution and makes sure that whatever process it adopts is unimpeachable and cannot be overturned," he says.

The committee would also have to give Mkhwebane the chance to make submissions on why she should not be removed.

"The longer parliament fiddles around and kicks the can down the road and acts indecisively, the more it is going to damage the integrity, not of Mkhwebane, but rather the office itself. That, for me, is the biggest concern," says Steenhuisen.

The longer that someone who is clearly not up to the job stays in office, the deeper the longer-term damage that will be done to the institution, he says.

But even if the committee does find Mkhwebane incompetent and guilty of misconduct, it doesn’t mean the National Assembly will necessarily vote to support that.

Here’s where it gets interesting. There are 400 MPs, and 267 of them would need to vote for her removal.

Of course, if the ANC’s entire 233-strong caucus voted alongside the DA’s 84 MPs to remove Mkhwebane, then the deal would be done. But that is not a given — yet.

ANC deputy secretary-general Jessie Duarte, after the party’s recent national executive committee (NEC), said the ANC had not discussed whether it will instruct the caucus in parliament to vote Mkhwebane out — if it even gets that far.

"We have not taken a view as to whether or not we will ask the public protector to step down," Duarte said.

She said the ANC’s primary position is that the law has to take its course. And when Mkhwebane does go to parliament, the ANC would like to understand where she is coming from. "I think in all of this we are still saying we support the office of the public protector and we will continue to do so," Duarte said.

It’s a softly-softly approach. But it’s necessitated by the fact that the ANC’s own president, Ramaphosa, and one of its leaders, Gordhan, are in the midst of a battle with the public protector that has the potential to end their political careers.

It means the ANC will have to balance the strong divisions in the party, between those who believe she is utterly incompetent and those in the pro-Zuma "radical economic transformation" camp (such as secretary-general Ace Magashule, Nomvula Mokonyane and Tony Yengeni) who are her fervent supporters.

While some ANC leaders, like Gordhan, have publicly criticised her, others in the party publicly support her.

The ANC has an unenviable task: balancing the doctrine of separation of powers, the rights of chapter 9 institutions, and the role of the judiciary in all of this. It is a political highwire off which the party can easily tumble when the caucus eventually comes to the NEC to ask for a mandate on how to vote on the Mkhwebane issue.

When that happens, though, party members will be expected to vote in whichever direction they’re told. Any ANC MP who seeks to do otherwise could be disciplined, as was the case when former MP Ben Turok refused to vote for the controversial Protection of State Information Bill in 2011.

Julius Malema’s EFF, which is an avid supporter of Mkhwebane, has 44 seats in parliament and, it can be assumed, will vote to save her. But they’ll need the ANC’s help.

And while many smaller parties will support the DA, it’s not a given they all would.

IFP spokesperson Mkhuleko Hlengwa tells the FM there would have to be due process first. His party is the fourth largest, with 14 seats. But Hlengwa says the IFP won’t go into the process with a "predetermined stance".

While he says the court ruling warrants an inquiry, that doesn’t necessarily mean Mkhwebane must be removed from office. It may just mean something needs to be fixed.

Bantu Holomisa’s United Democratic Movement (UDM) has just two seats. But Holomisa told the FM that it was "too soon" to deal with the substance of the issues raised against Mkhwebane.

He says there are no rules in parliament which deal with how exactly to remove a sitting public protector, and that must be determined first.

Some parties have already nailed their colours to the mast. Dennis Bloem, spokesperson for the Congress of the People, which has two seats, says his party will support a motion to oust Mkhwebane.

Equally, the Rev Kenneth Meshoe, leader of the ACDP (four seats), says his party would "definitely" support her removal following the court judgments. "It would make no sense for us to defend her," Meshoe says.

The Freedom Front Plus now has 10 seats in parliament, and leader Pieter Groenewald told the FM that he would also support Mkhwebane’s removal, as the party doesn’t believe she’s competent to fill that post.

But he warns that given the complexities of the process, the lack of clear rules, the litigious nature of everyone involved, it’s highly likely that Mkhwebane could see out her term, which ends in 2023.

"If you can’t beat her, you must outlive the incompetence," he says.

Either way, it’s clear the ANC vote will be critical. If the party votes as a single bloc, rather than according to factional lines, Mkhwebane’s time might be up.

The constitution does, however, provide the broad strokes of how the head of a chapter 9 institution can be removed. And section 194 also stipulates that once a committee has begun deliberating on someone’s removal from such a position, the president can immediately suspend him or her.

But whether Ramaphosa has the political appetite to suspend Mkhwebane at this point, while the storm of Bosasa’s donations to his 2017 campaign swirls around him, remains to be seen.

It’s a constitutional crisis in the making — but delaying doing the right thing will only worsen SA’s plight.

The public protector may be removed for misconduct, incapacity or incompetence — and the ANC vote in parliament is going to be crucial

—  What it means