Hansard: NA: Unrevised hansard
House: National Assembly
Date of Meeting: 11 Sep 2023
No summary available.
MONDAY, 11 SEPTEMBER 2023
PROCEEDINGS OF THE NATIONAL ASSEMBLY
Watch here: Plenary
The House met at 14:00.
The Speaker took the Chair and requested members to observe a moment of silence for prayer or meditation.
THE LATE PRINCE M G BUTHELEZI
The SPEAKER: Order, hon members.
Sit down, hon member. On behalf of the presiding officers, I wish to convey our heartfelt condolences to the family, his political party and friends of the hon Prince M G Buthelezi
who passed away on Saturday, 9 September 2023. The House will schedule a condolence motion in this regard at the appropriate time. May we stand and observe a moment of silence in memory of the hon member and all those who have departed. Thank you.
Hon members, I should also inform the House that the Speaker and the Chairperson of the National Council of Provinces, together with leaders of political parties or their representatives, will visit the Buthelezi homestead on Wednesday, 13 November 2023. I thank you. The Order of the Day
... September? You know why I said November? It’s because my birthday is in November. The secretary will now read the Order of the Day.
RECOMMENDATION FOR REMOVAL OF ADV B MKHWEBANE FROM OFFICE OF PUBLIC PROTECTOR IN TERMS OF SECTION 194(1)(C) OF CONSTITUTION
(Consideration of Report of Committee for Section 194 Enquiry established in terms of NA Rule 129)
The SPEAKER: Hon members, on 3 December 2019, the House adopted rules to provide for procedures to give effect to section 194 of the Constitution pertaining to the removal of office bearers in institutions supporting constitutional
democracy. The Report of the Committee for Section 194 Enquiry, established in terms of National Assembly Rule 129, is now before the House, and after the debate the House must take a decision on the committee’s recommendation that the Public Protector be removed from office.
At this point, hon members, I have a list of speakers and I now invite the chairperson of the Section 194 Committee, hon Richard Dyantyi.
Mr Q R DYANTYI: Hon Speaker, the Deputy President of the Republic, members of the executive, Members of Parliament, members of the media, fellow South Africans, to echo the words of the Constitutional Court, the National Assembly, and by extension Parliament, is the embodiment of the centuries-old dreams and legitimate aspirations of all of our people. It is the voice of all South Africans, especially the poor, the voiceless and the least remembered. It is the watchdog of state resources, and the enforcer of fiscal discipline and cost-effectiveness for the common good of all of our people.
It also bears the responsibility to play an oversight role over the executive and state organs, and to ensure that constitutional and statutory obligations are properly executed. Parliament is the mouthpiece, the eyes and the service-delivery ensuring machinery of the people. No doubt, it is an irreplaceable feature of good governance in South Africa.
The Public Protector, as established by section 181(a) of the Constitution, is one of the institutions set up for the very important purpose of supporting and strengthening our democracy. The Constitution, in unambiguous terms, provides that the Public Protector is independent and subject only to the Constitution and the law, and it must be impartial and exercise its powers and perform its functions without fear, favour or prejudice.
Moreover, the Constitution enjoins organs of state, through legislative and other measures, to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness. The Public Protector, like other Chapter 9 institutions, is accountable to the National Assembly.
Accountability is the cornerstone upon which the Constitution is built. It is the pillar that drives our constitutional dispensation. Acountability, together with responsiveness and openness, are the cornerstones of our democracy, and all of these values entrench a culture of justification and explanation of one’s actions. The Supreme Court of Appeal explained that to ensure a functional, accountable and constitutional democracy, the drafters of our Constitution placed limits on the exercise of power. Institutions and office bearers must work within the law and must be accountable. Put simply, ours is a government of laws and not of men or women.
The committee thus found itself in an unenviable position, one that every South African would hope is never repeated, where it had to hold to account the very person appointed to investigate impropriety and improper conduct with state affairs. The charges against Adv Mkhwebane, based on the grounds of misconduct and incompetence, were serious and related largely to matters in which all South Africans have an interest and which impacted us all.
These included alleged misconduct in respect of the reports of the SA Reserve Bank and the Vrede Dairy Project. In addition, there were serious charges alleging misconduct and/or incompetence, and relating to the management of internal capacity and resources in the Public Protector SA, PPSA, the prevention of fruitless, wasteful, and/or unauthorised
expenditure in legal costs, failure to conduct investigations independently and impartially and/or deliberately avoiding making findings against or directing remedial action against certain public officials, while deliberately reaching conclusions of unlawful conduct and imposing far-reaching remedial action in respect of other officials.
After the former Speaker determined that the motion was in order, it was referred to an independent panel for a preliminary assessment. The panel comprised of the retired Judge Nkabinde, Adv Ntsebeza SC and Adv De Waal SC, which conducted its preliminary assessment. On 16 March 2021, this House agreed to conduct an inquiry into Adv Mkhwebane’s fitness to hold office on the grounds specified in the motion.
Since the dawn of democracy, this committee is the largest committee ever to have been established, with each of the
14 representative parties in the National Assembly having voting power. This speaks to the importance and interest in the matter we were charged with. The enquiry was embarked upon without a blueprint or precedent to guide us but we were unanimous in our understanding that our role entailed a fact- finding exercise to establish the veracity of the charges contained in the motion and whether those facts established misconduct or incompetence as defined.
We placed no blind reliance on the report of the independent panel, aware of the limitations of that body. We were at all times acutely aware that the committee had to discharge its function with reference to its constitutional purpose by providing this House with sufficient information to determine whether the grounds as alleged have been established. I have no doubt that, ... on the facts, the committee has established that Adv Mkhwebane has indeed misconducted herself and is incompetent. She is therefore not fit for this esteemed office which she has been entrusted to.
Indeed, our report is detailed and describes the reference to the fact that we adduced why this is the case. Ours is not an enquiry which rubber-stamped the findings of the independent panel or the courts. On the contrary, we had hundreds of hours of testimony and we were seized with copious documentary evidence. Where we have established misconduct or incompetence, we are confident that Adv Mkhwebane did not raise any valid defence for her conduct to sway us.
In fact, the enquiry unearthed even further examples of misconduct and incompetence, that had this committee not adduced evidence in the manner that it did, it would never have come to the fore. The committee’s proceedings were guided by the rules of this National Assembly, our terms of reference, the directives issued by me as chairperson, the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004, but most importantly, the supreme law of the land, the Constitution.
The committee’s process was inquisitorial in nature. We agreed to utilise the services of evidence leaders to assist and empower us by presenting evidence and putting questions to Adv Mkhwebane.
From the onset of the enquiry, Adv Mkhwebane indicated that she was participating under protest but was eager for her version of events to be heard by the public. However, as it were, the committee was denied the opportunity to hear direct oral evidence due to circumstances beyond its control. She never answered the many questions which the committee put to her on the substance of the matters before us, instead adopting an adversarial approach, as she maintained that the
process had been inherently and irreparably unfair and biased, and the outcome predetermined.
The committee dealt with several procedural objections and was faced with various obstacles which interrupted and affected our ability to carry out our work. Indeed, the journey was not easy. There were many offramps but we soldiered on, determined to fulfil our constitutional obligation and not to be held to ransom. I have no doubt that the committee has carried out its functions diligently, despite all of these challenges and attempts to frustrate the process.
A total of 24 witnesses presented evidence, and also Adv Mkhwebane herself, in her own written evidence. This was considered by the committee, together with the many sworn affidavits. The committee conducted a lengthy and legally sound process which focussed on fact-finding in a manner that was fair to all. The committee called witnesses and was presented with evidence, in addition to the judgements which contained serious adverse findings against Adv Mkhwebane.
Had any such predetermined outcome existed, the committee would surely not have ploughed the time, financial and human resources into understanding the role of the Public Protector
and the manner in which she investigated. We did not arrive at these findings lightly, and what the public and fellow members of the Assembly may not have seen was the hours and hours of diligent and consistent work that took place behind the scenes to try to unpack the charges.
The drafters of the Constitution allocated the responsibility of making these findings in respect of the removal to a committee of the National Assembly. We are confident that Adv Mkhwebane was not denied the opportunity to be legally represented as she claims. To the contrary, the committee used its best endeavours to assist her to have access to her stated legal advice. This process culminated in a report which shows incontrovertible evidence that Adv Mkhwebane had misconducted herself and is incompetent.
Thus, notwithstanding the noise that has surrounded the work of this committee, the cries of unfairness, of being a predetermined outcome, of this being a political campaign to protect untouchables, what rings crystal clear to all of this, and what cannot be denied, is that Adv Mkhwebane, on the facts established, is not fit and proper to hold the high office of Public Protector.
The success of our work has been made possible by hon members of that committee. We were robust and committed to duty ... the evidence leaders, the parliamentary constitutional affairs office, the entire support staff, the media covering our work, each of the 24 witnesses and the independent panel for their work. Most importantly, we thank the members of the South African public.
The work we do in holding those that wield public ... accountable is not always easy but we persevered, steadfast in our commitment to you, our people. We believe that we have executed our duties to the best of our abilities. Where we have fallen short, we will learn from it. I have no doubt that this process will forever be recorded in the history books of our nation as a reminder to every person who performs a public function that you are accountable for your actions. With humility, I herewith table the report of the ad hoc Committee for Section 194 to this august House for your consideration. I thank you. [Applause.]
The SPEAKER: Thank you, hon Dyantyi for the report. Hon members, I now invite hon Dr A T Lotriet.
Dr A T LOTRIET: Speaker, in the 2016 matter, the Constitutional Court expressed itself by saying the Public Protector is thus one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in state affairs and for the betterment of good governance.
I agree, Speaker, that the Office of the Public Protector is one of the most invaluable gifts to our nation, but provided that the incumbent to that office lives up to and complies with the set of values, principles and requirements required of a Public Protector.
However, let’s look at what is expected and required of a Public Protector as very well summarised by Mr Hassan Ebrahim when he appeared before the section 941 committee. At the very least, the Public Protector must meet the constitutional requirements of being fit and proper as an objective requirement. The Public Protector must be beyond reproach, a person of stature and suitably qualified, acting with dedication and capable of maintaining high standards. The Public Protector should be conscientious and have the integrity required to be entrusted with responsibilities of
the Office of the Public Protector and to discharge the substantial constitutional duties and obligations.
Added to this, the Public Protector must exercise functions with actual and demonstrable independence, impartiality, dignity and effectiveness. What is also important is that the Public Protector must maintain credibility, scrupulous honesty and personal integrity. Openness and transparency should be part of the office and how it operates, and it should always work in good faith. Very importantly, Speaker, at all times the Public Protector must not put personal interests over and above the public interest, and not put personal interests above those of the Office of the Public Protector and the mandate of the office.
This is a very high bar set and the incumbent whose responsibility is to give effect to it. Speaker, it is Parliament’s responsibility to ensure that the Public Protector lives up to this and that the Office of the Public Protector - this invaluable gift to our nation - is protected. It is therefore a seminal point in our democracy today where Parliament is requested to express itself on the fitness of the incumbent Public Protector to hold this esteemed office.
Yes, it is a first for Parliament, but at the same time it is an indictment that it was allowed to come to this point.
However, as the National Assembly, we can today give effect to what the writers of our Constitution had in mind when the office was created as a Chapter 9 institution. Speaker, it was more than a year-long process to get to the point today. It was a year where the NA had to develop new Rules and directives to give effect to section 194 of the Constitution.
It was a year in which the committee and the public were exposed to every trick and tactic in the Stalingrad handbook; a year in which court case upon court case was launched to stymie the work of the committee; and where the courts found again and again in favour of the committee and Parliament. It was a year in which committee members, the chairperson, evidence leaders and, above all, the witnesses were exposed to insults, attacks, threats and a total disregard for the dignity of Parliament and its processes by the Public Protector and her legal team.
This is not what our citizens deserve. Not only were the actions and behaviour we all had to witness beyond any level of dignity and decorum, but it was a reckless abuse of taxpayer’s money. Millions upon millions wasted by the Public
Protector and her team on frivolous and irrelevant arguments, on witnesses called, as well as the never-ending demand for postponements. In fact, Speaker, it all amounts to a staggering R160 million if you add all the cost orders and the legal costs - money, we won’t get back.
Although we had the opportunity as the NA to develop new Rules and directives, we have to, as a lesson learnt from this episode, obtain clarity on: What is reasonable legal assistance; what does it mean; and what is the extent to which taxpayer’s money can be used for such purposes? It cannot be an open ended, unlimited and unfettered right and provision.
It is also to understand that the individual, the incumbent must be separated from that of the office.
Speaker, if I have to be honest, if we look at what we experienced and the evidence that we have heard, it is clear without a doubt that Adv Mkhwebane cannot proceed as the Public Protector. We can correct the situation. We can protect the Office of the Public Protector. We can ensure that the citizens of South Africa are protected from an incumbent who does not comply with the high bar set for the Public Protector.
Speaker, we can again do it, not only today, but also to ensure in future that we do not find ourselves in this situation by not heeding when concerns are raised about a possible incumbent. So, Speaker, today we can change history. We can correct the wrong by supporting the removal of Adv Mkhwebane. Thank you. [Applause.]
Ms O M C MAOTWE: Thank you very much, Speaker. The president of the EFF and I participated in this process from its inception. The president of the EFF would have been here to participate in this debate if he was not persecuted by the alliance of the ANC and the white right wingers. You have now forced him to appear in court on frivolous charges. The Report we are required to endorse today is a product of a process that has been grossly unfair to the Public Protector, which has been nothing more than a vindictive political witch hunt against the Public Protector.
As the old English saying goes, ‘in matters of coincides with the law of majority does not work. Here today, Speaker, the uninformed majority seeks to railroad all of us to impeach a person not liked by the establishment. Here today, we see Parliament being used to break the law in order to protect the powerful. This Report was hurried and ignored basic principles
of fairness that are normal and ought not to be negotiated in a process such as this one.
It is a clear demonstration of the determination of the chairperson to move with speed to impeach the Public Protector regardless of the litany of procedural mishaps committed by the committee since inception. The hurried nature in which this Report has been prepared lays a credence to the view held by the Public Protector that this is a frivolous political process meant to punish a person who is not compliant with the dominant narrative, which seeks to uphold or hold up the current head of state as a saint.
Apart from the many procedural own goals by the chairperson and the committee, the most important issue at the moment is that the Public Protector has not had legal representation in the committee since the termination of the funding for legal fees by the Acting Public Protector since the end of March.
The Acting Public Protector’s belated offering of R4 million rand has been mired in controversy which has not allowed the Public Protector space to have legal sanitation.
Firstly, the Acting Public Protector indicated that Adv Mkhwebane must appoint her legal representatives herself and
manage the additional R4 million rand that the Office of the PP made available as she wishes. This was unheard of and placed the Public Protector in a very precarious position because she is here to account for her performance as the Public Protector and not as a private individual.
Secondly, this committee railroaded the Public Protector to have the State Attorney as an attorney of record. This was done despite the Public Protector having raised concerns about the conflict of interests of the State Attorney. This was disregarded by the committee again, further exposing the Public Protector to a state-sanctioned witch hunt whose figure head has always been the chairperson.
When the Public Protector finally managed to appoint Chaane Attorneys, the committee refused to give them time to acquaint themselves with the record. On what basis were the attorneys going to brief counsel if they themselves did not have an opportunity to study the record and get to know the case?
Speaker, Rule 129(a)(d) requires that this committee must conduct its proceedings in a reasonable and procedurally fair manner. We can never claim that the conduct of the Chair was reasonable or fair in the manner he has handled this issue.
From the initial directives that the chairperson issued, right up to the end, this process has been grossly unfair to the Public Protector. The findings in the Report that the Public Protector demonstrated incompetence in relation to the charges against what she faced were therefore predetermined. This is a mandate that the chairperson and the evidence leaders were given, and these findings were made without affording the Public Protector her constitutionally enshrined right to legal representation.
The fact that the Report mentioned that the process will be mooed after the term of this Public Protector expires in October, is proof enough that this process is no longer about justice, but about punishing an individual. Parliament can’t be reduced to a tool for punishing individuals who seek to disagree with the powerful.
We therefore reject the Report, and we reject the political witch hunt initiated by the DA and supported by the ANC alliance to punish Adv Mkhwebane in order to protect Mr Ramaphosa. We reiterate our stance as the EFF that we reserve our right to take this Report and the illegal adoption of this Report by this Parliament on judicial review. We invite all interested parties to join us in doing so, including Adv
Mkhwebane herself and all justice loving individuals in this country. I thank you. [Applause.]
Ms Z MAJOZI: Hon Speaker, it is with a heavy heart that I quote the IFP founder, parliamentary leader and President Emeritus, His Excellency, Prince Mangosuthu Buthelezi, who sadly passed on this past Saturday. His Excellency, once said, and I quote:
We have within us the DNA of unity, of integrity and truth. Over 44 years, the IFP established a legacy. We have consistently been the champions of democratic ideals.
Throughout the liberation struggle, no matter the twists and turns, Inkatha remained the true to its mission.
As we continue with the work of Parliament today and for the years to come, may we all be guided by the unity, integrity and truth that His Excellency stood for.
Hon Speaker, the co-function of the Public Protector is to investigate any conduct of government and administration that is seen as improper and prejudice. As their main objective is to defend democracy and its citizens, ironically the committee on the section 194 enquiry had to deal with many unnecessary
obstacles caused by the Advocate Mkhwebane, which made it extremely difficult for us to ensure that recommendations were raised within a suitable timeframe.
South African deserve a Public Protector who is both competent and impartial, and one who does not allow personal politics and dictate how the office is run.
The occupant of the Public Protector’s office must be unbiased, exercised his power and perform its functions within fear, favour and prejudice. The Public Protector must be able to investigate matters and protect the public against issues such as maladministration in connection with the affairs of government or improper conduct by the person performing a public function, which include the President of the country.
It took the committee 14 months to reach a concluding recommendation and a draft report, however, it was not a fault of the committee. Rather, it can be attributed to the relentless kick for touch technics employed by the Public Protector.
The committee was essentially held at ransom for 14 months dictated too by legal teams that were either nor present nor
adequately prepared. For over a year, state resources were wasted by a person who was supposed to act as a custodian of the Chapter 9 institution. Chapter 9 institutions are the backbone of our democratic institution as they protect citizens against decisions that are not in their best interests. Based on the evidence provided in the form of both verbal and written reports, it has given us shocking insight to see that suspended Public Protector, Advocate Mkhwebane, is guilty of misconduct for ignoring various findings in victimising officials during her tuner.
She as the figure head of Chapter 9 institutions should have been promoting transparency and accountability, yet the section 194 Enquiry Committee was forced to become a Public Protector and perform a very function she was mandated to.
It is unfortunate that the committee had to the fullest extent parliamentary power and mighty to engage with the Public Protector as she was obstructive in promoting the principle of accountability and transparency.
Our country can ill afford to have an integrity of accountability structures as crucial as the Public Protector’s Office be called into question. If this enquiry has taught us
anything, it would be that the individual taking up the role of the Public Protector needs to embody the qualities of supporting the best models of democracy and act as a watchdog. These are the principles our late father, founder and leader of the IFP, Excellency, Prince Mangosuthu Buthelezi has always called for and instilled in this Parliament. May his soul rest in peace. The IFP supports the report. Thank you.
Dr C P MULDER: Hon Speaker, hon Deputy President, colleagues, today is rather a sad day, it is a sad day because, for the first time since 1994, we are discussing the removal of the chairperson of a Chapter 9 institutions. It’s a sad day.
Chapter 9 is a very important part of our Constitution. It deals with the state institution supporting constitutional democracy. The Public Protector is the first to be mentioned in that section of the Constitution. In the past 18 months the section 194 committee dealt with this matter, it was the most comprehensive, most thorough, and most fair investigation process in Parliament since 1994.
This is the document, this is the document, this is the work,
404 pages that we dealt with. That was the document that we dealt with, the report. At the first full meeting of the committee, after having listened to the exposed of the Public
Protector’s legal representative, I said the following: I said to the committee that the strategy of the Public Protector was very clear, drag this process out as long as possible, frustrate Parliament and try every trick in the book to make it impossible to make the finding. Her legal representative at the time took a very strong exception to what I said but after
18 months we all know that I was right.
The strategy was further to create the impression of a vulnerable poor victim of an evil conspiracy, despite the legal representation, desperate for legal representation to protect her. Unlike the ordinary people, the Public Protector had the benefit of legal representation of her choice and was assisted by four legal practitioners from the beginning of the proceedings at a cost of at least R36 million of the people’s money. No one, but no one in South Africa since 1994 was assisted in that way.
In a country where the people are literally starving and where about 60% of the youth are unemployed, it was revealed in November 2022 that the so-called people’s advocate had already received R13,1 million of the people’s money to represent the Public Protector. Advocate Mpofu displayed his disregard for the poor and unemployed by calling the R13,1 million
“peanuts”. Peanuts! That is the attitude about the poor and the unemployed.
The Constitution is very clear the Public Protector can only be removed on the grounds of misconduct, incapacity, or incompetence. The committee found numerous examples of misconduct and incompetence. Earlier, already the constitutional report found in the Reserve Bank case that Advocate Mkhwebane’s entire model of investigation was flawed and that this type of conduct falls short of the high standards required for the office.
The Section 9-committee reached consensus that Advocate Mkhwebane has misconducted herself on multiple occasions and the most egregious manner. Further that she demonstrated an unacceptable and debilitating level of incompetence and that’s why the committee recommends to Parliament that she should be removed today.
The EFF made a number of points today to say every time this is a vendetta against the Public Protector because she found against the executive. It’s simply not true. You see there was a previous Public Protector who made very bad findings against the former executive and that Public Protector was not
removed. Why? Because she was not incompetent. She was not incompetent. We can do something about this today, we can do something about this today together. My appeal to each and every member is to support this motion, let’s bring dignity back to the office of the Public Protector. The self- protector, the self-protector needs to go today. Thank you very much.
Ms M E SUKERS: Hon Speaker, there has been a consented effort to discredit this process. The evidence leaders and parliamentary staff most of whom are women became collateral damage in an attempt to paint Advocate Mkhwebane as a victim of an abusive process and targeted conspiracy.
The ACDP strongly reject this. The ACDP entered this process with an open mind to establish the facts on the matters before the committee. This process brought into sharp focus the role of Parliament and its oversight function over Chapter 9 institutions.
It is our responsibility as office bearers to maintain and uphold the principles of our constitutional democracy. It is our duty of office and our duty to the people of this nation. That should be our primary concern.
The cost of this enquiry is carried by the taxpayer. We cannot separate the cost from the overall aims of the enquiry or the constitutional obligation of the individual who occupies this office. For us not to mention the fledglings disregard for constitutional duty and obligation as it relates to accountability displayed by Advocate Mkhwebane would be amiss.
Mr Hassan Ibrahim in his address to the committee liken the Public Protector to a super hero. He articulated the intention of the drafter of our Constitution in an idealism that is regrettable missing in the public service today. The high ideals that would place consideration of the poor and the vulnerable above self. There is no greater form of elitism but for the poor to bag on their knees for the school to remain open and for the public servants to have an open check to defend poor decision-making in long drawn out battles in court on the public’s dime. Such court expenses rob the poor of justice, justice which they cannot afford in the court of law. In the end, the deliberate delays, the escalation in cost because of it and the behaviour of the current Public Protector through a legal representative of choice was an insult to this Parliament of the people which she is accountable to.
The process demand fairness and an open mind. The principles of fairness to the individual who is the subject of the enquiry cannot be at the expense of the people of South Africa. It is our submission that the outcome of the enquiries speaks to these principles of fairness but with the people of South Africa in mind and the constitutional obligation put upon the Public Protector foremost.
The political theatre that grab the attention of the nation showed a blatant regard for the ideals that so-called liberation heroes profess. People like Mr van Loggerenberg and Mr Samuel were mistreated in this Parliament of the people.
Their right to dignity and fairness flagrantly disregarded as was the concerns and the rights of the people of Vrede. I thank you.
Mr B H HOLOMISA: Hon Speaker and hon members, in July 2019, Advocate Busisiwe Mkhwebane committed the cardinal sin of doing her job too well. She wrote a report on an investigation into allegations of a violation of the Executive Ethics Code through an improper relationship between the President and African Global Operations, formerly known as Bosasa.
The ANC and DA have laid the charge against her for doing this. The evidence we have heard in the section 194 inquiry is that certain companies had donated money to the Cyril Ramaphosa, Cr17 campaign. If you want to see proof of the names of the people who received payments in the Cr17 saga here it is ... [Applause.] ... read it and you will see the relationship between these companies and senior ANC leaders and key operators.
The question why the President went to court to seal these records, is to hide where these monies came from. These companies include, amongst others, Bosasa, Mohlakeng, Maverick State, Linked Environment Services and Behaviour Change Agency, a company which featured in the leaked bank statements, which later got a contract for the Presidency’s COVID-19 communications campaign.
It wasn’t the usual suspects like the big companies, but it was companies that were systematically pilfered through government departments and municipalities who funded this campaign.
It is ironic that former DA leader Mmusi Maimane, who raised the alarm and took the matter to the Public Protector, found
himself out in the cold and now the DA is in cahoots with the ANC to remove Advocate Mkhwebane... [Applause.] ... is this why Maimane was sacrificed? It seems Advocate Mkhwebane had hit a raw nerve with her 2019 report and that the ANC has closed ranks, with a vengeance and we are at this juncture where they are merely getting rid of her for doing her job too well.
Finally, the House should come up with a mechanism to establish which companies are doing business with government and had donated to this campaign and why monies had ended up in some Cabinet members pockets, as shown in this document. The UDM therefore, categorically disagree with any course of action that sees Advocate Mkhwebane his departure from office.
Ngoko ke Mqwathi, sithi, nto yakuthi, njengokuba uphethe kwaye ukhokele, jonga le mali yaqokelelwa kumasebe karhulumente esithi ikwabanye babaPhathiswa bakho, niyeke lo mntu ebesenza umsebenzi wakhe. La masela la. [Kwaqhwatywa.]
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Hon Speaker,
Deputy Speaker, His Excellency, the Deputy President, members of the executive, our colleagues, Members of Parliament, our
guests in the gallery. Hon Speaker, when the office of an Ombud or Public Protector in the new constitutional dispensation was first proposed in this country, the ANC in its policy document entitled Ready to Govern: ANC Policy Guidelines for a Democratic South Africa said:
The ANC proposes that a full-time independent office of the Ombud should be created with wide powers to investigate complaints against members of the public service and other holders of public office and to investigate allegations of corruption, abuse of their powers, rudeness, and maladministration. The Ombud shall have the power to provide adequate remedies he or she shall be appointed by and answerable to Parliament.
Hon Speaker, our former President, Nelson Mandela, explained the thinking behind the creation of the Public Protector to the African Regional Workshop of the International Ombudsman Institution in 1996 as follows:
We were mindful from the very start of the importance of accountability to democracy. Our experience had made us acutely aware of the possible dangers of a government that is neither transparent nor accountable. To this end, our
Constitution contains several mechanisms to ensure that government will not be part of a problem but part of a solution.
The importance of the office of the Public Protector cannot be stressed enough. When we adopted our final Constitution, we understood that it was a strategically important step to move towards the kind of South Africa we all knew we were wanted.
In 2016, the Constitutional Court described the Public Protector as one of the most invaluable constitutional gifts to our nation, in the fight against corruption, unlawful enrichment, prejudice or impropriety in state affairs and for the betterment of good government.
Embarking on section 194 process which we undertook was important for the preservation of this important state institution which supports our constitutional democracy.
Hon Speaker, the independent panel’s function was to conduct and finalise a preliminary assessment of the motion to determine whether there was prima facie evidence showing that Advocate Mkhwebane had indeed committed misconduct and/or was incompetent as alleged. The independent panel made its own
findings and submitted its report not all the charges were sustained the independent panel indeed found prima facie evidence of misconduct and incompetence and recommended that the National Assembly should establish the committee.
Our task as the committee was to establish the veracity of the specific charges of misconduct and incompetence laid against the Public Protector. We bore the duty to interrogate the evidence and apply our minds in line with our constitutional duty of oversight and not to merely rubberstamp the report.
The committee was not a court of law, but a body comprising of elected representatives who had to discharge a function, uniquely and constitutionally allocated to a committee of the National Assembly. From the inception, the position of the ANC was to consider the facts and evidence placed before the committee and apply its mind. We approached the work with an open and enquiring mind. We had no predetermined outcomes. We heeded the caution made by the chairperson that we should stay focused at all times, pursue the facts and evidence, adhere to the procedural fairness, uphold the rule of natural justice, audi alteram partem and stand on rationality.
This would help members avoid being trapped in the two extremes that were out there. The one extreme being that the Public Protector was not fit to hold office and the other extreme being that the Public Protector was fit to hold office and therefore there was no need for this inquiry.
The ANC was consistently present in every meeting. We engaged with the evidence, posed questions to the witnesses and most importantly, engaged the Public Protector sworn statements and posed written questions to her. Fairness was demonstrated at all material times. Advocate Mkhwebane was given the opportunity to present her sworn statements and cross examined all witnesses.
The revised procedure allowed her an election to answer questions from members and evidence leaders in writing or orally. She was also provided an opportunity to make an oral or written closing argument. We are satisfied that a legal process was followed.
Hon Speaker, we experienced many challenges, understandably. This was a novel process after all. Many things could have derailed our work, but we kept our focus. We understood that
that section 237 of the Constitution charges us to perform our constitutional obligations without delay.
In respect of the allegations proffered against the Advocate Mkhwebane, and having considered the evidence, we share the committee’s view that Advocate Mkhwebane misconducted herself and displayed incompetence. Advocate Mkhwebane has also repeatedly neglected her duties and that of a constitutional office bearer, an officer of the court and an organ of state bears.
The inadequacies in the Vrede investigations and the excesses of the lifeboat investigation, both of which caused serious harm, are such that they would have destroyed a reasonable member of the public’s confidence in her ability to discharge her duties and functions.
Hon Speaker, Ms Caroline Zulu-Sokoni gave evidence based on her role as the Public Protector of the Republic of Zambia and said:
The Ombudsman is the only institution which the poor can call upon, we should not allow those poor people to lose
heart and lose faith in the institution that has been set up for them.
Ngalokho Somlomo lohloniphekile, sitsi nangabe kuneluphenyo lolukhona, lolwentekako, kufanele kutsi nalabo labatsintsekako bonkhe, ikakhulukati labo lekufanele bahlomule kulowo mklamo, kufanele babe sebayabutwa nabo kutsi kwentekani kuloku? Kepha kuloluphenyo lolu, lolwentekile laseFrede amange bantfu babutwe. Labo labatsintsekako, labo labahluphekile labo hulumende labalungisele kutsi kufanele bahlomule kulomklamo.
Bashiywa ngaphandle bangabutwa.
Ngakoke ngalokho sivumelana naye Make Zulu-Sokoni kule nesiphetfo sakhe, lasishito kutsi vele kufanele lelihhovisi, libe lihhovisi lebantfu labahluphekile. Ngiyabonga.
Mnu V ZUNGULA: Somlomo, nguZungula. Enkosi.
USOMLOMO: Uxolo Zungula.
Mr V ZUNGULA: This action to seek to remove a sitting head of a Chapter 9 institution will do more harm than good for the
country. Effectively, The DA-lead ruling party is sending a strong message that if you are in public service, and you don’t toe the line of the ruling party, the party will embarrass and chase you out of office. Never has it happened anywhere in the world where a sitting ombudsman is removed, especially after finding against the powerful Presidents and Ministers. Who’s next in this hateful brutality? Is it going to be Independent Electoral Commission, IEC commissioners, judges in the Electoral Court? Basically, everyone who dares to uphold the law and Constitution will be met with a wrath of the DA-led ruling party.
This action is clearly set out to make independent Chapter 9 institutions to work in fear. It’s either you rule in favour of the most powerful sections of society, or you will be punished. Yes, all people must account. Hence, we say the removal of a Public Protector should be based on strong and justifiable grounds to prevent any erosion of this vital office.
The process to determine the fitness of the Public Protector was filled with bias against Adv Mkhwebane. It is a fact that Adv Mkhwebane from the onset had to fight up until the level of the Constitutional Court for legal representation in the
inquiry. The bribery allegation against three members of the ANC is still under investigation by the SA Police Service, SAPS. How can Parliament proceed with impeachment, yet these damning allegations that erode the credibility of the process are still under investigation?
The committee once more, was in contempt of court when it proceeded to work while Adv Mkhwebane was not legally represented by lawyers of her choice. The process was unjustifiable rushed. The changing method for Adv Mkhwebane from oral to written testimony is an example of how eager the ruling party wanted to finish this before her term ends, so that it gets to this point of removing her. It is also common cause that the change from oral to written testimony is something that was prophesised by the late hon Joemat- Pettersson, which means indeed there was a predetermined outcome.
A process to remove a Public Protector must be free from bias and actions that erode the credibility of the process. With that being said, we as ATM are not going to support a hateful resolution that is akin to the apartheid Parliament, creating a law to keep Robert Sobukwe in prison indefinitely. To Adv Mkhwebane ...
... uThixo akukhusele. Le nkohlakalo yenziwa yiDA ikhokhelwa yi-ANC ayizi kuphumelela.
Mr B N HERRON: Madam Speaker, the sorry saga of Adv Mkhwebane’s tempestuous occupancy and now forced removal from the Office of Public Protector, reflects already the steady politicization of the office that was not the intent of the drafters of Chapter 9 of the Constitution. Mkhwebane’s legal strategy not to respond to evidence placed before at the Section 194 Inquiry denied the country the opportunity to hear her perspectives. Her withdrawal from participating in the proceedings also denied the committee the opportunity to consider her evidence. Had she participated and given the evidence, she may have been able to persuade at least some of us that not all the charges were sustained.
She was the first Public Protector who after the court ruled that the office’s findings were binding, had decisions commonly taken on review. By remaining quiet she left members of the committee, no legal grounds not to recommend her impeachment. The process therefore passed technical mastery. But the manner in which the office has become a critical expression of factional politics and opposition party
opportunism, damages its integrity and purpose. This challenge predates Mkhwebane’s appointment.
The objective of Chapter 9 institutions is to strengthen constitutional democracy not to work as politicised levers. The Constitution affords parliamentarians a key role. The institutions must be independent and impartial, may not be interfered with by any person or organ of state and are accountable to the National Assembly.
Chapter 9 lists five functions for the Public Protector. The first of which is to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice. Another function critical to the right of the people to hold the state to account, state that the office must be accessible to all persons and communities.
But what has happened over the past decade or so is that politicians have increasingly used the office as a political football to pursue political goals, including litigating against perceived enemies without having to incur legal fees. The Executive Ethics Act demands that the Public Protector investigate any alleged breach of the Act and Code. The only
hedge that we have to insulate this requirement from subjective political abuse is the integrity of the office bearer.
Mkhwebane’s removal will be a victory for some politicians, though not necessarily for the integrity of the systems. What we should be asking ourselves is what this process has taught us about the appointment of Public Protectors and how to prevent the office being subsumed by political interest. We feel procedurally and morally obliged to vote for the impeachment of Adv Mkhwebane though we do not celebrate doing so. Thank you.
Mr A M SHAIK EMAM: Hon Speaker, let me start off by saying that in terms of the recommendations that were put forward in respect of the removal of Adv Mkhwebane from the Office of the Public Protector, the committee deliberated on this matter, millions of rands have been spent waste of taxpayers’ money.
If you see what the current Minister of Finances says. The financial situation we find ourselves in this country, but just look at the amount of money that has been wasted on this matter.
Now, very importantly hon Speaker, I find the level of hypocrisy in this House and let me tell you why I say that. [Interjections.] The Constitutional Court upheld a Pretoria High Court ruling that found that Mkhwebane was dishonest in her investigation. Who appointed those judges? This House. The Public Protector lost an application for leave to appeal an order by the High Court in February 2018. Who appointed those judges? This House. A full bench of the High Court set aside a controversial report and its remedial action which ordered the Special Investigating Unit, SIU to recover more than
R1 billion from Absa. Who appointed those judges? This very House.
The SPEAKER: Hon Shaik Emam, I am very sorry. Please take a seat. What is your point of order hon member?
Ms H O MKHALIPHI: The point of order is that Parliament does not appoint judges. The speaker on the podium is misleading the House. I’m calling a point of order on that one, he must stick to his speech. He must not mislead this House.
The SPEAKER: Thank you very much hon Mkhaliphi, take your seat. You may proceed hon member.
Mr A M SHAIK EMAM: Thank you very much. Recommendations do come to this House, do come through to the committees, okay. But no one in this particular House has ever rejected. Nobody in this House have ever rejected or raised concerns about any of the judges even when they were appointed by the Judge President in this country.
The SPEAKER: Hon Shaik Emam I am very sorry, take your seat. Hon Shivambu.
Mr N F SHIVAMBU: [Inaudible] ... when a member stands up here and says that we are responsible for the appointment of judges is misleading the House and is misleading all of us. And it’s purposeful. We understand the limitations of the NFP and that they’re not coming back next year. But don’t mislead us. We’re not responsible for appointment of judges. It is done elsewhere, it’s not us. And to repeat that as if it’s a factual basis, is misleading and we must not allow that to just pass. It’s not the point of debate is a factual issue.
We’re not responsible as Members of Parliament for the appointment of judges, and the member must withdraw that particular nonsensical insinuation. It is as simple as that.
The SPEAKER: Thank you very much hon Shivambu, you’ve made your point. Order! Hon Shivambu you are partly correct. But if I may also correct you, Members of Parliament - Parliament is represented ... [Interjections.] Just hold. Parliament is part of the processes of appointing judges. [Interjections.] So, can we leave it at that. There is no need for us to debate on the matter. Thank you very much hon members. [Interjections.] Proceed hon member.
Mr A M SHAIK EMAM: I think hon Shivambu should attend to the crisis in his political party. Firing 200 somewhat members. Asking his members to be corrupt in going to find R1,5 million transport. [Interjections.] Let me also say to all these other EFF members, don’t you worry, you will be next, you will be next and you will be next. All of you soon. [Interjections.]
Now, hon Shivambu is very selective in his hearing because he did not hear what I said in the end. I also said that nobody in this House ever rejected any judge or anyone or commented or raise concerns about anyone that were appointed. And we talk about the separation of powers, the judiciary has a responsibility to deal with these matters. Now judge after judge, after judge has found the Public Protector warned him
in failing out to carry their responsibilities ... [Interjections.]
The SPEAKER: Order hon members. Order hon members, order. Hon Shaik Emam fortunately your time is up. Thank you. [Interjections.]
Mr A M SHAIK EMAM: The NFP will support the report tabled here today. Thank you very much. [Interjections.]
Moh M M E TLHAPE: Ke a leboga, Mmusakgotla.
Deputy President, members of executive, hon members, hon Speaker, we must acknowledge that this committee drew so much attention locally and internationally, as a pioneer, a multiparty committee obviously with different views, coupled with many theories around its mandate. Let me also attest that this was a committee of Parliament and interestingly as members, we agreed on the basic principles or guidelines that would have navigated us through unchartered waters.
According to ... [Inaudible.] ... from the Institute of Principle Studies, principles set the foundation. They recognise what is true in new or unknown situations. So, principles in a way helped us as a committee to interpret and apply the truth to the evidence we received, hence the outcome today. So as the committee, we became principled and chose ...
... gore, ga re kitla re seka motho, re ya go seka molato. Ra ba ra tsaya kgakollo go tswa mo go David Thoreau fa a ne are, ga go botlhokwa gore o labile eng, se se botlhokwa ke seo o se bonang.
It is not what you look at that matters, it is what you see. So, some of the wrongs that we saw when we looked at the Public Protector South Africa, PPSA and the evidence that was put before us are the following: Weaponized and misuse of disciplinary policy to instil fear, intimidate and victimise some employees whereas the policy requires that disciplinary measures be fair, not punitive, and be used as a corrective measure. Cohesion of employees to set unreasonable and unrealistic deadlines for reports without considering human and financial challenges of the office and the complexity of
matters. This resulted in employees rushing to complete investigations to maliciously comply because they feared audi letters and subsequent disciplinary actions that often followed. Executive managers who served the office under a number of Public Protectors, demonstrated how this destroyed the internal capacity of the office, and how it led to low staff morale and unhealthy work environment characterised by fear. We heard how the Public Protector sought to eliminate anyone who dared to differ with her.
Mme gone re ne re sa seke motho, re seka molato.
Diversion of financial resources meant for outreach programmes to improve accessibility of PPSA enabled investigators to do physical inspections. Investigators were left only with being able to conduct desktop investigations, thereby impacting on effectiveness and litigations due to poorly conducted cases.
This resulted, hon members, also in a high turnover of skilled and competent investigators and a weak institution that could not deliver quality work as expected.
There was bypass of quality assurance mechanisms during the investigations of some of the charges that were served before us, such as CR17 and the Sars unit matters with investigations kept closely to the Public Protector and certain individuals. Deliberately ignoring certain evidence presented to her without explanations, as well as deliberate misuse or misleading of the wrong executive ethics code. And still as the committee, we remained principled that we will not judge the person, but we will look at the wrongs that were done.
Demonstrable limitations on understanding the power she possesses, lack of knowledge on some aspects and application of the law and making far reaching findings like that of the total implementation of the Inspector General of Intelligence Report, when she was advised that the State Security Agency, SSA could not authenticate the report, nor did the Inspector General of Intelligence, IGI have jurisdiction or to investigate Sars in terms of the National Intelligence Act.
This hon members, are few examples of many instances of incompetence and misconduct that characterised the tenure of Advocate Mkhwebane.
Le fa gone re ne re sa seke motho, re seka molato.
As the committee, we cannot turn a blind eye to the devastating impact this has had on the office and the public perception about the institution that is meant to strengthen our constitutional democracy. Least we fail, on our mandate that of probing her fitness to hold office.
Ka jalo Mmusakgotla, re le mokgatlho wa ANC, re dumelana le tshwetso ya gore Mosireletsi wa Setšhaba a tlosiwe mo maemong a gagwe jaaka fa bopaki jotlhe jo re bo reboletsweng, ra ba ra bo sekaseka, bo supile fa a sa itekanela go tswelela ka tiro
e. Lebaka legole ke gore, ga re a seka motho, re sekile molato. Ke a leboga.
Mr S M JAFTA: Thank you hon Speaker. We must place it on record that our position on this report must not be confused. We hold a strong view that the flag bearers of our Chapter 9 institutions are not beyond reproach. We have full confidence in the judiciary, particularly the Constitutional Court and all other courts, including KwaZulu-Natal High Court Division. We believe that the office of the Speaker has been impartial in its dealing with Section 194 Committee.
We place all these on record to underscore the following: While we agreed that this process was above board and that the courts and the office of the Speaker have been fair throughout the process, we believe that this report must be viewed by members from an Ubuntu standpoint. We do not carry any brief for Advocate Mkhwebane. Her term will expire in October.
Impeaching her just a month before it expires, would be in line with precept of Ubuntu, which has since been accepted as one of the values of the Constitution.
The Constitutional Court judgement in Makwanyane, for example, reminded us of the basic underpinning of Ubuntu as entailing a balancing of the interest of society against those of the individual, for the maintenance of law and order, but not for dehumanising and degrading the individual. The Constitutional Court went on to rule that Ubuntu translate as humanness. It oppresses itself in ...
... Umuntu ngumuntu ngabantu.
In Furman verses Georgia, the Supreme Court of Appeal of that country pronounced that the measure of the country’s greatness
is its ability to retain compassion in time of crisis. The holy quorum tells us that Ubuntu or Asabiyya ... [Inaudible.]
... compassion and unity.
Hon Speaker, Steve Biko affinities to Ubuntu was premised on the recognition that we needed to place less emphasis on power and more on humanity. Reverend Martin Luther King reminded us in 1965 that all humanity is tied together. The holy Bible speaks about holiness and forgiveness. The late Archbishop Tutu told us that in Africa we have something called Ubuntu in Nguni languages or Botho in Sesotho, which is difficult to translate into English. It speaks about holiness. It speaks about compassion. The AIC will accordingly not vote in favour of this report. Thank you.
The SPEAKER: Hon members, I know invite hon T Loate. This is his maiden speech, hon members.
Mr T LOATE: Hon Speaker, on the 14 October 2016, the term of office for Advocate Thuli Madonsela as Public Protector came to a glorious full-time conclusion. With the present Public Protector, court judgement after court judgement have been scathing of her failure to understand the law and her role as the Public Protector. She dabbed in politics. This was utterly
wrong. Advocate Thuli exemplified how a Public Protector should go about her work. No Public Protector should ever do that.
Advocate Mkhwebane allegedly collaborated in secret with the former State Security Agency, former Director General Arthur Fraser, and also with former President Jacob Zuma during the CIEX report investigation. This made her position as Public Protector totally untenable. A new Public Protector must sever all ties with political parties, particularly the governing party, and become a committed servant of the law, the Constitution and the people. A new Public Protector must do what Thomas Becker, a great friend of King Henry VII, did when he was appointed Archbishop of Canterbury. He gave up being Lord Chancellor and placed the interest of the church up front and centre. Politics took a back seat. Misdemeanour by the powerful must be confronted head on constitutionally and in the true interest of our people and the country.
Hard lessons have been learned. Today we are called upon to consider impeachment of the Public Protector, Advocate Busisiwe Mkhwebane, as recommended by the Section 194 Committee. This call is an enormous conscious call to all of us in this House. It impacts on understanding the oath that we
all took. While the Section 194 Committee report tells us of what transpired, we owe it to the ... [Inaudible.] ... country and the Constitution that it be the last time we have to find ourselves in this situation. I thank you.
Mr M NYHONTSO: Madam Speaker, the position of the PAC of Azania on the recommendations for the removal of Adv Mkhwebane, from the public office is crystal clear and we do not support the recommendations.
We are definitely voting against it. The ruling party is exposing itself for everyone to see their ugly hatred of women. They punish one of their own severely in order to introduce another timid and useless one of their own whom they can use like a puppet.
Adv Mkhwebane is used as a porn in an internal power struggle of the ANC. She is a strong African woman who is not ready to go down without a fight. This has made the ruling party to rig the rules in sham enquiry and impose their factional tendencies to punish a woman who truly intended to make the
Office of the Public Protector an institution that works for the public at grassroots level.
The masses of the people continue to have many confrontations with the government that has no conscience and no real interests in the affairs of their constituencies. In our view the ruling party is no longer with the letter and the spirit of the Constitution to have taken an oath to serve and protect. The internal conflict with the ruling party is overlapping into the state machinery and into usurping powers of Chapter 9 institutions such as the Public Protector to impose a sinister agenda-based psychological attack on a woman they cannot control.
The removal of a Public Protector is based on the manoeuvres to gaslight an independent woman of substance. This is lack of respect for African womanhood. The PAC of Azania will oppose the ANC of South Africa and the DA for removing Adv Mkhwebane. I thank you.
Mr M G E HENDRICKS: Hon Speaker, I would like to take this opportunity to thank the Chairman of the committee for his fairness and his leadership and the members of the committee for the decorum where everyone was treated equally.
Hon Speaker, this was a learning experience and it was the first time for many of us and many experience, hon members. It is my view that in terms of the Superior Courts Act, the Office of the Public Protector should in fact be a specialist court because of the high standards that is expected of a Public Protector.
Hon Speaker, this was an expensive DA motion. A 160 million. I think that is why 60 of the ANC members abstained from that motion. Al Jama-ah accepts the report, but not the harsh sanctions. We call for a lesser penalty, but political parties voted according to party lines.
I want to thank the Public Protector for her hard work. She got three consecutive clean audits which previous Public Protectors did not achieve. She cracked the whip when she came because, many in the office were lazy bums and dragged cases. However, the buck stops with the Public Protector so I suppose she must fall on her sword even if 90% of the cases that were dealt with were done by other members in her department.
To take away her pension and benefits is too harsh. The offence she was found guilty was a concern, but not
impeachable. The ANC must be more careful in the future to support the motions of the DA. Thank you very much.
Dr M M GONDWE: Madam Speaker, no one can deny that today’s sitting is the first of its kind. In fact, this sitting is seminal and foundational in its nature. This House has never in the History of our democracy had to convene and decide on the removal of a head of a Chapter 9 institution, but here we are today we are about to vote as this august House on whether or not to remove Adv Mkhwebane from the Office of the Public Protector.
Madam Speaker, based on the evidence that was led and adduced in the course of the enquiry. You Madam Speaker, I and others in this hall, have little or no choice to ensure that before the end of this sitting Adv Mkhebane is no longer Public Protector of the country.
Madam Speaker, Adv Mkhwebane has gone completely and utterly rogue. She is no longer serving the interest of the country, its people and the office she currently occupy. In the seven years that she has been at the helm of this office she has done nothing but to denigrate and degrade its standing and stature with her egregious behaviour. She treats this office
like her own personal faithdome in which she wills and exercises unchecked and unfettered power and also makes and breaks the rules as she goes along. That is why the DA is in no uncertain terms today supporting the report under consideration by this House. In particular the recommendation that she be removed from public office immediately. Madam Speaker, it was this House that appointed her and it is this House must remove her because there are convincing and compelling grounds to do so.
Madam Speaker, from the outset of the enquiry, the committee embarked on what was essentially a fact finding exercise in the determining the veracity of the charges of misconduct and in the incompetents contained in the substantive motion. With respect to charge one, the committee established that Adv Mkhwebane solicited undisclosed advice and inputs from the State Security of SA, SSA, in relation to the infamous constitution amendment in the Reserve Bank Lifeboat Report which constitutional amendment sought to significantly amend or alter the mandate of the Reserve Bank of South Africa.
The committee further established that the undisclosed advice and inputs of SSA in particular from one Dr Moodley of the SSA was so significant that the wording that he proposed for the
constitutional amendment was used verbatim. Word for word in the Reserve Bank Lifeboat Report.
The committee further established that the consequences of the Reserve Bank Lifeboat Report was so serious and far-reaching that they severely damaged our economy.
On charge two, the committee established that Adv Mkhwebane unjustifiably narrowed the investigation into the Vrede Dairy matter to exclude relevant and material arising from the Gupta leaks emails. In addition issues relating to the value for money received in respect of the public expenditure for the Vrede Dairy Project was simply not considered.
Madam Speaker, Adv Mkhwebane also failed to consider how the funds from the Vrede Dairy Project float straight from the Gupta-owned Estina Diary and were ultimately used.
Charge three Madam Speaker, relates to the incompetence of Adv Mkhwebane. The committee established in relation to the Reserve Bank Lifeboat Report matter that she grossly exceeded and overreached the bounds of her powers of authority when she imposed the remedial action that she did in that report and further failed to ensure that it was appropriate and bore a
racial relationship or connection to the concerns raised in the relationship to the report.
Even though the committee did not establish a finding of misconduct in relation to paragraph 10 of charge four in the motion, it did however, established that Adv Mkhwebane committed misconduct in relation to paragraph 11 of the same charge. Specifically in that she utilised the resources of the Office of the Public Protector to obtain legal advice and initiate litigation for personal gain.
Furthermore the committee established that she failed to prevent fruitless and wasteful expenditure with respect to the legal costs of her office by litigating recklessly in several matters including in the Gordhan and the Pillay matter in the CR17 matter. The evidence before the committee also show that her engagements of external consultants of the likes of Mr Paul Ngobeni to render legal services with respect to litigation in which senior and junior council were already engaged amounted to misconduct and resulted in unnecessary and wasteful expenditure being incurred by her office. Further drove a partisan narrative against the affected parties in the judiciary.
Madam Speaker, Adv Mkhwebane has shown herself to be exceedingly incompetent and ignorant of the law and has grossly miscounted here self as Pubic Protector. She does not deserve to hold the office she currently occupies and has never deserved to hold that office. The evidenced led and adduced before the committee has more than confirm this.
Madam Speaker, Section 194 of the Constitution provides that the Public Protector may only be removed from office on grounds of misconduct, incapacity or incompetence. This same section further requires a finding to that effect by a committee of this House and the adoption by this House of a resolution calling for that person’s removal from office.
As such all remains for this august House to adopt the report of the committee recommending that Adv Mkhwebane be removed as Public Protector. I am therefore calling on each and every Member of Parliament sitting in this Hall to vote in support of this report and Remove Adv Mkhwebane immediately from office.
Madam Speaker, the whole country and indeed the whole world is watching us right now. Let us do what is right by our heart and democracy and the people depending on institutions such as
the Office of the Public Protector to keep to keep government in check. I thank you. [Time expired.]
Mr X NQOLA: Hon Speaker, the speakers that came before me from the EFF, ATM, and UDM today presented us with a number of fallacies. They have, firstly, used emotional fallacies characterised by confusion and emotion as reasons and facts.
They seek to use the oppression of black women to persuade society not to focus on the facts of what the committee was set up for but to focus on their political sentiments and hearsay that are devoid of truth and facts.
Secondly, they presented us with a strawman argument suggesting that the removal process seeks to weaken the office through the process we undertook as Parliament. In other words, they want to suggest that the nonremoval of Advocate Mkhwebane from office will have the opposite effect. These arguments are not supported by facts but by efforts to politicise this process for political point scoring. Unlike them, we were at all times during the inquiry, guided by facts and evidence that Advocate Mkhwebane failed to dispute and provide us with justifications for her conduct.
Let me remind the EFF what its leader said in 2016 when reservations were raised about Advocate Mkhwebane as a candidate for the position of Public Protector South Africa in Parliament. Mr Malema said the institution of Public Protector is well established with rules, established practices and independent investigators. If Advocate Mkhwebane tried any shenanigans, the institution itself would expose her for who she was. I have good news for the EFF, the institution did expose Advocate Mkhwebane, and the facts were laid bare for all to see.
However, typical of the EFF, they are not friends of the truth and that does not suit their narrative and agenda. We are dealing with people who lack principles and change their stand at any moment of convenience without any substantive basis. We expected too much from them to participate in the inquiry by honestly and objectively assessing the evidence before them.
The emotional fallacies and distractions failed in the face of the truth.
Section 195 of the Constitution requires that the holder of a public office maintains high standards of professional ethics, must ensure the efficient, economic and effective use of resources and must provide services impartially, fairly,
equitably and without bias. We can say without fear of contradiction that Advocate Mkhwebane fell short of all these qualities. Firstly, her conduct before the inquiry was inappropriate and in other instances, undermining the functions of Parliament. She employed every trick in the book to delay the work of the inquiry. We saw these through frivolous applications for refusal, first for the chairperson, then the evidence leaders, followed by a court application to review the decision of the chairperson not to recuse himself, and in between bringing an application that sought to put the inquiry in abeyance until the outcome of her review application which the Western Cape High Court dismissed as baseless.
We also witnessed the choreographed walkout of her legal representatives. All these were aimed at delaying the work of the inquiry as she unashamedly evaded accountability. This came at a greater cost to the taxpayer, increasing the legal fees from the estimated R4 million to over R30 million. All these monies were spent on her legal fees, yet we are told that the committee denied her legal representation. Advocate Mkhwebane was entrusted with the power of ensuring that the state resources are used efficiently on behalf of and for the benefit of the people of South Africa. She disregarded all
this and chose to become the main culprit in wasting the resources of the state.
These are the actions of someone who is expected to be the protector of the people of South Africa and the embodiment of accountability. This process has demonstrated how she lacks upholding principles that guide a fit and proper individual. The committee, in line with the constitutionally enshrined principles of fairness, extended the right to be heard to Advocate Mkhwebane, instead of accounting and answering to the allegations levelled against her, she used the opportunity to politicise the entire process, claiming there was a witch-hunt against her without any substantial basis.
The facts are that the process of the enquiry was initiated as a result of court judgments that made primary findings on her competence and her lack of basic knowledge of the law and its application. Advocate Mkhwebane, the EFF, the UDM and the ATM, sought to confuse the process of the inquiry and society that there was a predetermined outcome without any substantiation. Having seen how the facts unfolded during the inquiry, we understand why Advocate Mkhwebane held this view. She was well aware of how she abused her powers in the office and how she acted with impunity and had no reasonable explanation for her
conduct. As a result, she sought sympathy from the public and presented herself as a victim. She sought to confuse emotions with reason to distract attention from the facts.
The allegation that the committee had a predetermined outcome had no basis. Had this been the case, we would not have interrogated and assessed the evidence of all the witnesses that came before the committee, nor would we have exonerated Advocate Mkhwebane on some of the charges like the Government Employees Medical Scheme, Gems, and the SA Revenue Service, Sars, Subpoena matters. The committee found there was no sufficient evidence to conclude incompetence and misconduct.
What was most concerning for the committee was the role of the State Security Agency, which influenced the remedial action in the CIEX Report. The extent to which Advocate Mkhwebane sought to direct Parliament to amend section 224 of the Constitution and further prescribed how the wording of the amendment should read. The evidence before the committee revealed that the remedial action came directly from the State Security Agency. This conduct had the effect of undermining the independence and impartiality of the office.
Instead of reflecting on her conduct as advised by some court judgments, by doing some introspection and improving her methods of investigation, she proceeded to employ consultants and paid them with financial resources of the Public Protector South Africa to write articles and launch scathing social media attacks on the judiciary and those who were subjects of her investigations. This is just the tip of the iceberg of the wrongful conduct that characterised the tenure of Advocate Busisiwe Mkhwebane. As the ANC, we believe the misconduct committed and incompetence shown by Advocate Busisiwe Mkhwebane is of a serious nature and includes such acts as unconstitutionally encroaching on the jurisdiction of Parliament, the National Prosecuting Authority and the South African Police Service.
Repeated material errors of various laws and legal instruments, including the Prevention and Combating of Corrupt Activities Act, the Executive Ethics Code and even the Public Protector's powers. The repeated failure to give out to affected parties, the selective reliance on evidence to achieve a particular outcome disregarding relevant evidence and to assess evidence to ensure reports reflect why certain evidence is rejected. The patently incorrect manner of substantiating complaints based on inferential reasoning not
supported by evidence and taking wholly inadequate steps when investigating.
If anyone should be accused of having a predetermined outcome, it is the EFF, the UDM, the ATM and now joined by the PAC. They were simply not interested in the facts and the historic Section 194 process. There is no substance to any of the charges that were served before the committee that they can factually and substantially disagree with or claim any unfairness. As the ANC, we reiterate our position that we went on a fact-finding mission. We sought the truth from the facts. We uncovered it. We are convinced that Advocate Busisiwe Mkhwebane is not fit and proper to be a Public Protector of a critical institution supporting our democracy. Speaker, this Parliament you are leading had to firmly and decisively protect the citizens of South Africa against a Public Protector that has since gone rogue. Thank you very much, Speaker. [Applause.]
Question put: That Adv B Mkhwebane be recommended for removal from the office of the Public Protector in terms of section 194(1)(c) of the Constitution
The House divided.
The Speaker announced that she had determined that, in accordance with the Rules, a manual voting procedure would be used and that this would take the form of a roll call vote whereby each member would be requested to voice his or her vote. Members would be called from the membership list, per party, in alphabetical order.
A quorum being present in terms of Rule 98(1), voting commenced.
Voting [TAKE IN FROM MINUTES]
Question agreed to.
Recommendation for removal of Adv B Mkhwebane from the office of Public Protector in terms of section 194(1)(c) of the Constitution accordingly agreed to.
The House adjourned at 16:47.