Public Protector removal from office request
Justice and Correctional Services
05 December 2018
Chairperson: Ms M Mothapo (ANC)
The Committee considered whether it should expedite procedures to remove the Public Protector, Busisiwe Mkhwebane, from office. Members were presented with her response to the formal complaint submitted by the Democratic Alliance Chief Whip in reference to the Absa Bank lifeboat court judgement. The DA felt that the Public Protector was not fit to hold office. The judgement confirmed she was biased and lacked impartiality, as well as being dishonest and incompetent.
Members had mixed reactions about the matter. The ANC came out strongly in favour of there being a lack of compelling evidence to institute removal procedures. They also argued that the DA request was premature as there was already an active court application brought by the DA that the Public Protector Report on the Vrede dairy project be reviewed and set aside on the grounds that she acted incompetently and failed in her duties to investigate senior politicians implicated in corruption. They suggested that the Committee could only entertain the request pending the outcome of the case.
The EFF said its decision to support the removal of the Public Protector was based on the court judgments.
The Committee voted on the matter with the ANC and NFP rejecting the request; EFF abstained until further consultation with its principals; and the DA voted in favour of the request.
The Chairperson provided background stating that Democratic Alliance Chief Whip, Mr John Steenhuisen, wrote a letter to Speaker Baleka Mbete and suggested that the removal of the Public Protector must be expedited. The Speaker sent the letter to the Committee to look into the matter. The Committee had requested the DA Chief Whip to come before the Committee to clarify the matter. After which, the Committee wrote to the Public Protector to respond to the complaint. The Public Protector has responded and today the Committee will scrutinise her response take a formal decision o the way forward.
Mr S Mncwabe (ANC) referred to paragraph 82 of the response document where the Public Protector requests that some Committee members recuse themselves. He asked if any Members needed to recuse themselves from the Committee meeting. The Committee cannot proceed without deliberating on this statement because of its implications.
Mr S Tleane (ANC) said that he got the impression that Mr Steenhuisen seems to want the Committee to agree to the process of expediting the removal of the Public Protector. The Committee would first have to undertake its own investigation to see if there was any wrongdoing before it can take a decision. This is a legal matter and there is no evidence suggesting that the Committee has conceded to any view that the Public Protector was incompetent. Therefore, it would be in the interest of the Committee not to allow itself to become entangled in this matter. If there is some basis for the Committee to take such a decision on this but on the basis of the two presented documents it would be problematic to pursue this matter from a Committee point of view. The complainant can take this matter to the court as his constitutional right but Mr Tleane has not seen any evidence to go along with the request of the complainant.
Mr J Selfe (DA) said that there were several cases where the Public Protector Report on the Bankorp bailout was taken on review. The court in a case brought against her. Those concerns directly speak to her competence to hold office.
Now the main question remains that if it is not for the Justice Portfolio Committee or Parliament to deal with this matter, what procedure does one follow if the Public Protector cannot discharge her duties competently. He had a problem with the Public Protector’s response because she equates herself to a judge but she is not a judge. The question is what other procedure would one follow to have the Public Protector removed when she is unable to discharge their duties.
Mr G Skosana (ANC) said that the Committee thought it was necessary to obtain more clarity from Mr Steenhuisen, and he felt that the Public Protector had responded adequately to the allegations.
Adv M Mulaudzi (EFF) said that Mr Steenhuisen was indeed invited to interrogate the allegations. It would have been fair if both the Public Protector and Mr Steenhuisen were present because the Members’ questions would be answered. In paragraph 10, the Public Protector confirmed that for the Committee to proceed with her removal there must be gross incompetence. In paragraph 18, it appears that she is comparing herself to a judge. In paragraph 28, she states that the Committee cannot rely on the Vrede Dairy Report matter that is still before the courts to deem her incompetent to hold office.
Adv Mulaudzi said, however, on the basis that she failed to pursue politicians such as Mosebenzi Zwane and Ace Magashule who were allegedly implicated in the Vrede dairy farm saga in the Free State, the EFF would agree that she was not fit to occupy the Office of the Public Protector.
Mr Mncwabe said that he was one of the Members that sat on the Committee responsible for the appointment of the Public Protector. She was appointed as the Public Protector based on her ability to demonstrate her understanding of the law and her exceptional performance during the process. He was not convinced that the allegations demonstrated serious misconduct and the lack of evidence brings those allegations to futility.
On the allegations submitted by Mr Steenhuisen, he well understood the ABSA matter and its implications [Absa Bank Limited and Others v Public Protector and Others (48123/2017; 52883/2017; 46255/2017)  ZAGPUBLIC PROTECTORHC 2;  2 All SA 1 (GP)]. However, it was a critical matter to say that judgment would be taken about her fitness to hold office based on that because we all know that next year the debate on the nationalisation of the Reserve Bank will take place. People forget that this matter was raised by politicians, that ABSA Bank received some billions from the Reserve Bank before 1994. Therefore, it would be unfair to use that as a point of reference to support the argument that the Public Protector was unfit to hold office.
Secondly, taking the Public Protector on judicial review does not constitute incompetence. Lastly, the complainant, in his letter of 16 February 2018 in paragraph 2 rendered his arguments questionably. He raises the matters between the DA and the Public Protector – the paragraph on its own paints a different picture. The DA has claimed that the Public Protector works for State Security and this is very questionable. After careful consideration of the matters and arguments – his party took a decision that it would not be dragged into personal battles.
With regards to the Vrede dairy farm matter, the National Prosecuting Authority , Hawks and other agencies could not find the evidence to proceed with the matter further. So the question remains, what evidence was the Public Protector supposed to obtain if the agencies mandated to undertake these investigations failed to do so? It is unfair to expect the Public Protector, without much investigative capacity, to pull off the obtaining of evidence that the Hawks and NPA failed to obtain. Therefore, he did not support the removal of the Public Protector because there was inadequate evidence to suggest she was incompetent.
Mr Selfe replied that one has to have regard to the fact that this is not a personal matter at all but a judgment of a High Court in South Africa. Let us say you parked the substantial findings where the court found the Public Protector did not make the correct finding and set those findings aside. What is appalling is that the court found the Public Protector did not follow the correct procedure. Paragraph 95 of the judgement stated the reason that the Public Protector gives for affording the Presidency and the SSA the opportunity to consult with her, after she had decided to change the focus and remedial action of her investigation substantially without affording the reviewing parties a similar opportunity, is disingenuous. The Public Protector did not give the same opportunity of consulting with the reviewing parties, or to allow them the opportunity to respond to the adverse finding.
In paragraph 120, the Court found that the Public Protector did not conduct herself in the manner that should be expected of a person occupying that office. These are serious findings and we cannot sweep these findings under the carpet. One needs to look into what can be done about this and if the Public Protector and the complainant could have a suitable opportunity to ventilate whether or not there is precisely serious misconduct. We have never had to do this before. Unless we grapple with the procedure that needs to be followed, there is no use saying that because it is complicated, we must do nothing about it. That would mean Parliament is not doing its job.
Mr Skosana was inclined to agree with Mr Mncwabe. He referenced paragraphs 12 – 13 of the Public Protector response and said even in the ABSA case, it is not the actual report that was set aside by the court but some of the remedial actions contained in the Report. So did this constitute incompetence, misconduct, unfitness to hold Office? How many times do magistrates and judges in courts take decisions that get appealed? So does that mean they are incompetent or unfit for office? The allegations or complaints contained in the letter from Mr Steenhuisen are based on the North Gauteng High Court ABSA Bank matter. Only some remedial actions in her Report have been set aside by the judgment. Therefore, he did not support the motion to expedite the process to remove the Public Protector.
Mr Tleane said that in line with his previous comments, Members must at all times remember that the country is busy with the project of socio economic transformation and social cohesion. That is a fundamental process, and it is very complex and difficult and requires that when we engage in a process of decision-making we do not do so hastily. There is some evidence here and there that may suggest that the Public Protector might be in the wrong but the Committee cannot base its judgment on what has been presented. The Public Protector makes some references in her response about Members that should recuse themselves from this process. Thus it becomes imperative that the Committee call the Public Protector again so that she can answer for herself and explain some of the statements made in her response so that Members do not make assumptions. We cannot say that the DA or EFF is wrong but presently we do not have substantial evidence to institute the procedure to remove the Public Protector. Perhaps both parties, Mr Steenhuisen and the Public Protector, should be brought before the Committee for an engagement so that the Committee can take a decisive stance without even voting on this matter.
Mr Mncwabe said that the Committee must be cautious about paragraph 12 of the Public Protector response. If we have not yet received the audited performance of her Office, the statistics outlined in her response would put the Committee in a predicament about taking a decision on something that is yet to be audited. The Public Protector has made a finding about the recent Minister of Home Affairs who resigned. Everyone was happy about that but there is a complaint from the former Minister contesting the findings of the Public Protector against him. If we are going to remove people every time we are not happy with a decision – how many Public Protectors are we going to appoint and remove? This takes one back to the question of what constitutes gross misconduct. Therefore, Mr Steenhuisen’s argument is premature.
Adv Mulaudzi said that the EFF is basing its decision to support the removal of the Public Protector on the court judgments. He noted that this is the same Committee that was adamant about Sean Abrahams when the Constitutional Court confirmed that his appointment should be set aside. The Public Protector admitted in her response that some decisions have been taken on review. We need a Public Protector that will deliver 100 percent, and her decisions must be clear and they should not be found wanting and subject to review. Therefore, on that basis, we are arguing that she is not fit to hold the office.
Mr Selfe said what would be appropriate is that based on the findings in the court judgment there are grounds for a procedure to be followed to discern if these were serious enough to consider the removal of the Public Protector from office. These cannot be ignored otherwise the Committee would not be doing its job. There is a court application currently before the Pretoria High Court in which the DA asks that the court review and set aside the Public Protector Report No 31 of 2017/18 issued on 8 February 2018 on an investigation into complaints of maladministration against the Free State Department of Agriculture — Vrede Dairy Project. He pleaded to take the remarks made by in the Absa High Court judgment very seriously and embark on a process to ascertain whether or not those constitute the grounds to remove the Public Protector.
Mr M Maila (ANC) said that the Public Protector explained herself to the Committee about the Estina Dairy Farm. She had found a completed investigation by the former Public Protector and she only came up with the remedial action recommendations. Therefore, we need to be conscious about that when we discuss the Estina Dairy Farm.
Mr Skosana said that Mr Selfe and Adv Mulaudzi seem to think that Members did not take the Absa court judgment seriously, but this was not the case. The DA and EFF are also concerned about what the judge raised about the Public Protector. The ANC is arguing that as serious as the matter is, we do not think it is adequate to arrive at a point that a procedure to remove her should be instituted.
Mr Mncwabe said that he was perplexed by Mr Selfe’s assertions about the active matter before the Pretoria High Court between the DA and the Public Protector. Therefore, he questioned the point of this meeting because we cannot have parallel processes addressing one matter. If this matter is before the court, then it would be wise for the DA to withdraw this request pending the outcome of the court judgment. He was amazed that the EFF supported the removal of the Public Protector when it actively supported the appointment of the current Public Protector. He was under the impression that it is the EFF that is supporting the nationalisation of the Reserve Bank that the ANC supports as well. However, it is within its rights and that is acknowledged.
Mr Maila submitted that the complaint was premature and this proposal should be rejected, and be put aside until more compelling evidence has been submitted.
Adv Mulaudzi said the appointment of the Public Protector was a separate issue. He was of the view the EFF reserved the right to reject or accept until further notice because there is another structure of government that is seeing to the matter. He would consult his principals on the matter.
The Chairperson put the matter to a vote.
The ANC Members voted against instituting the procedures to remove the Public Protector as the arguments supporting the complaint were viewed as premature.
The EFF abstained until further consultation with the principals of its party.
The Democratic Alliance rejected that the arguments were premature to institute the removal process of the Public Protector from office.
The meeting was adjourned.
Mothapo, Ms MR
Maila, Mr MS
Mncwabe, Mr SC
Mulaudzi, Adv TE
Selfe, Mr J
Skosana, Mr GJ
Tleane, Mr SA
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