Q&A

Parliament’s portfolio committee on justice decided this week to hold off on investigating public protector Busisiwe Mkhwebane’s fitness to hold office. Chris Barron asked acting committee chair MADIPOANE MOTHAPO …

Why aren’t you investigating if the public protector is fit for office?

The DA, which brought the complaint of fitness for office to us, are also pursuing a legal action in that regard in the North Gauteng High Court, and as a committee we thought it would be premature for us to attend to the issue.

How does that case stop you from investigating her fitness?

The DA didn’t present a compelling case to the committee a few days ago.

Didn’t a full bench of the high court overturn her findings on the Absa/Bankorp matter?

Yes. But let’s say a decision by a judge is overturned by a court of appeal, are we then going to say that judge is incompetent?

Doesn’t your committee have an obligation to ensure the public protector is fit for office?

The misconduct which is being talked about, and the incompetence, no grounds were put before us by the complainant to say, this is what happened.

Surely, what happened is that the court reviewed her findings and overturned them?

The issue of review of the remedial action of the public protector is fair. So we can’t say because her decisions are being reviewed and so forth she is not fit for that office.

If a court overturns her findings, doesn’t that pose questions about her fitness for office?

I don’t think so.

Even when the court finds her conduct unacceptable?

That one I can’t comment on. But what was before us was not compelling [enough] for us to conduct an inquiry.

The high court overturning her findings, finding she overreached her powers, didn’t understand the law, was ignorant of her constitutional duty — aren't these compelling reasons?

No, I don’t think so. If you’re referring to the Absa/Bankorp case, that’s one isolated case.

Instructing parliament to amend the constitution: is that part of her mandate?

No, that is not part of her mandate. But it doesn’t warrant her removal.

Yes, there she overstepped her powers. But I don’t think that amounts to us saying she should be removed from office.

What in your opinion would constitute grounds for removal?

Do you mind if I don’t comment?

Doesn’t the constitution provide for the public protector to be removed for incompetence?

Yes, it does. I can’t recall where she admitted being incompetent.

Didn’t her lawyer just admit to the Constitutional Court that she had shown bad judgment and made errors?

Yes, she might have erred, but as a committee we don’t think even that warrants her removal. Let me not comment on that.

Have you received instructions to delay till the elections?

No.