CONCOURT DAMNS BUSISIWE
DA calls for probe into her fitness to hold office
PUBLIC Protector Busisiwe Mkhwebane might be under fire after a stinging Constitutional Court judgment dismissing her appeal against a personal cost order by the North Gauteng High Court.
There is however no haste from Parliament to remove her.
The apex court judgment found that Mkhwebane lied under oath and acted in bad faith in the Absa/Bankorp report saga.
Mkhwebane’s 2017 report was based on the R1.1 billion financial assistance that Bankorp – now amalgamated into Absa – received from the SA Reserve Bank (Sarb) between 1985 and 1991. She recommended the recovery of the money and directed Parliament to amend the Constitution to strip Sarb of its mandate to protect the value of the currency and revise its consulting obligations with the finance minister.
In reaction to the Concourt judgment, the DA said it would write to National Assembly Speaker Thandi Modise, calling for the party’s complaint against Mkhwebane’s fitness to hold office to be expedited.
This as the legislature has yet to initiate the proceedings for Mkhwebane’s removal.
In May the DA wrote to Modise, requesting resumption of removal proceedings against Mkhwebane after the court ruling on Vrede Dairy Project.
In June, Modise referred the matter to the justice and correctional services portfolio committee for consideration.
It was the second time the matter was referred to the committee after the committee recommended to the National Assembly early this year not to support the request to expedite the removal of public protector from office.
This after the ANC used its majority in the portfolio committee to block the attempt to initiate an inquiry into the fitness of Mkhwebane to hold office.
Yesterday, committee chairperson Bulelani Magwanishe said the committee is yet to consider the DA request after Modise’s referral.
“We had to deal with budget, which took the better part of the last two weeks. We had to meet with the entities that report to the department. We have just concluded the budget process,” Magwanishe said.
He also said the next urgent matter was that of National Prosecuting Authority’s Nomgcobo Jiba and Lawrence Mrwebi, who were given 10 working days to make written submissions on why they should be reinstated to their positions last Friday.
Magwanishe said the committee would deal with the Mkhwebane case after concluding the matter involving Jiba and Mrwebi.
Mkhwebane said yesterday’s Concourt ruling would set a precedent for all public protectors.
Last year, the central bank successfully challenged the report, which saw the high court ordering Mkhwebane’s office to incur the legal costs of the Sarb, with 15% of the cost to be paid by Mkhwebane personally.
Delivering the judgment, Justice Sisi Khampepe said there was no sound basis not to uphold the high court’s personal and punitive costs against Mkhwebane as she acted in bad faith while compiling her report.
“Personal cost orders are not granted against public officials who conduct themselves appropriately. Instead, they are granted against public officials, like the public protector, in instances where their bad faith conduct falls short of what is required from them,” Justice Khampepe said.
She said Mkhwebane’s entire model of investigation was flawed and that she was not honest about her meetings during her investigation. “She gave no explanation as to why there were no transcripts of the meetings with the Presidency and the State Security Agency,” she said. The court found that Mkhwebane’s conduct, including that of advancing “a number of falsehoods”, was not in accordance with the standard of conduct expected from public officials.
“This conduct included the numerous misstatements, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and reasons for why they had not been previously disclosed and generally failing to provide the court with a frank and candid account of her conduct in preparing the report,” the court said.
Mkhwebane has denied that she had lied to the court.
“I never told falsehoods under oath. All the documents… we’ll study the judgment and study what is the reasoning behind that because our papers were very clear what transpired during the process,” she said.