A scathing high court judgment in the Bankorp-CIEX case has resurrected calls for the removal of Public Protector Busisiwe Mkhwebane from office on the basis that "she misconstrued her powers and is grossly incompetent".
The DA pounced on the back of Friday’s ruling by the Pretoria High Court, which set aside Mkhwebane’s report, published in June last year, and her finding that Absa was liable to pay R1.25 billion to the government.
The court ordered her to pay some of her opponents’ legal costs personally, stating that she did not conduct herself in a manner expected from a person occupying the Office of the Public Protector.
On Friday DA chief whip John Steenhuisen wrote to Speaker Baleka Mbete requesting that the National Assembly expedite procedures to remove Mkhwebane from office on the basis of the court ruling.
Steenhuisen said the court judgment made a number of “deeply pejorative findings” against Mkhwebane.
He highlighted the finding of the court that: “… the Public Protector’s aim was to amend the Constitution to deprive the SA Reserve Bank of its independent power to protect the value of the currency.
“This is an aspect of the remedial action that had nothing to do with the presidency and should have been discussed with experts at the Reserve Bank.
“It was held that it was ‘disingenuous’ for the public protector to change the focus and remedial action of her investigation substantially without affording the reviewing parties a similar opportunity,” said Steenhuisen.
He said: “The court held that it was of the view that a reasonable, objective and informed person, taking into account all these facts, would reasonably have an apprehension that the Public Protector would not have brought an impartial mind to bear on the issues before her.
“We therefore conclude that it has been proven that the Public Protector is reasonably suspected of bias contemplated in Paja [Promoting of Administrative Justice Act].”
Poor understanding of law, own powers
Steenhuisen said the findings were particularly damning and charged that Mkhwebane had completely misconstrued her powers.
He complained about a recent media statement by Mkhwebane in which she accused the DA of having a personal vendetta against her and of being unpatriotic for continued and unrelenting criticism of her office without engaging the factual findings of her reports.
“This statement shows how advocate Mkhwebane fell far short of the legal requirement that she conduct herself in good faith and without fear, favour, bias or prejudice,” said Steenhuisen.
The National Assembly rejected the DA’s first attempt late last year to have Mkhwebane removed from office. At the time the party accused her of showing a poor understanding of both the law and her own powers.
The DA said that in the Bankorp-CIEX matter she grossly overreached her powers by recommending in her report that the Constitution be amended to alter the mandate of the Reserve Bank. She also sought to dictate to Parliament, to whom she is accountable, how and when legislation should be amended.
“Her actions in this regard compromised the independence of Parliament and the effectiveness of parliamentary procedures,” the DA argued at the time.
The ANC accused the DA of a malicious campaign against Mkhwebane and her deputy Kevin Malunga, saying the request for removal proceedings against Mkhwebane had no grounds and remained unfounded.
Mkhwebane said on Friday she was shocked by the Pretoria High Court judgment.
She would study it and decide on appropriate action.
The Constitution provides for the removal of the Public Protector from office on a finding of misconduct, incapacity or incompetence by a committee of the National Assembly and followed by the adoption of a resolution on the said removal by two-thirds of the members of the National Assembly.
