- Suspended Public Protector Busisiwe Mkhwebane claims the charges, which stem from her discredited CR17 report, against her are the most serious in her impeachment.
- Her attorneys wrote a letter to President Cyril Ramaphosa to request him to avail himself to the Section 194 Committee.
- If he does not, Mkhwebane's legal team will ask the committee to subpoena him to appear.
In an attempt to drag President Cyril Ramaphosa into her impeachment hearing, Public Protector Busisiwe Mkhwebane's lawyers argue the charges against her, which emanates from her discredited CR17 report, are the most serious.
Mkhwebane's attorneys, Seanego, sent a letter to Ramaphosa to ask him to avail himself to testify before the National Assembly's Section 194 Committee that is currently handling her impeachment.
"Should you be willing to avail yourself voluntarily as per this request, please indicate so by communicating your decision to do so preferably on or before Friday, 22 July 2022. The necessary arrangements will then be made to consult with you," read the letter, dated 19 July.
"However and in the unlikely event that you are not willing to avail yourself voluntarily, then the necessary steps will swiftly be taken to bring you before the committee by the invocation of the process envisaged in Section 14 of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act 3 of 2004, read with clauses 5.3 and 5.4 of the directives which were issued by the chairperson of the Section 194[1] Committee on 14 July 2022."
This means Mkhwebane's counsel, advocate Dali Mpofu SC, will apply to committee chairperson Qubudile Dyantyi that Ramaphosa be subpoenaed to appear before the committee.
The impeachment charges against Mkhwebane stem from the courts' damning findings of her reports on CIEX, the so-called SARS rogue unit, the Vrede dairy farm and the CR17 matter relating to the funding for Ramaphosa's ANC presidential campaign in 2017.
In the letter, Seanego said the charges emanating from the CR17 case were easily the most serious of the charges against Mkhwebane.
The letter refers to the High Court and Constitutional Court's long list of findings against her.
Before the National Assembly adopted the motion to impeach Mkhwebane, an independent panel appointed by the Speaker had to assess whether there is a prima facie case for her removal on the grounds of misconduct or incompetence.
Retired Constitutional Court Justice Bess Nkabinde chaired the panel, which also contained senior advocates Dumisa Ntsebeza and Johan de Waal.
Mkhwebane's attorneys' letter to Ramaphosa referred to the panel's "prima facie evidence of impeachable incompetence" in relation to the CR17 report, which are:
- The Public Protector was patently wrong in that the Executive Ethics Code does not make provision for inadvertently misleading of Parliament.
- She confused PRECCA and POCA by her "assumption" that money laundering was dealt with in the former when it is dealt with in the latter.
- Her finding Ramaphosa personally benefitted (was) without basis.
- Her refusal to give the president (a second) audit when she was requested by him to do so amounted to a failure to show appreciation for elementary principles of due process.
- Her failure to appreciate that she cannot direct the NDPP regarding "prosecutions to be instituted".
"As a result of these observations, which all emanate from the utterances made by the president in the course of the litigation in the CR17/Bosasa matter, the independent panel recommended that the National Assembly should set up the present Section 194[1] Committee in terms of the rules of the establishment of the actual existence of the alleged grounds, which was done. That is where we are at the present moment," read Seanego's letter.
The letter did not compare these to the findings on the other reports. It is also, at this stage, unknown whether Mpofu would call any of the litigants in the other matters to testify.
The letter also stated it "is a matter of public record" Ramaphosa previously made "various additional and serious accusations against the Public Protector, including but not limited to accusations of criminal conduct in the form of perjury".
"If true, such conduct could constitute impeachable misconduct. For the record, the Public Protector disputes the veracity of all the above said accusations.
"She is entitled to do so in spite of the fact that you have made the accusations and even in spite of the fact that the courts may or may not have confirmed them.
"The committee is therefore duty bound to enquire into their veracity. It is the main purpose and function of the committee to do so, fairly and reasonably, in terms of rule 129 AD.
"As the source of all these accusations and/or findings, the relevance of your testimony is self-evident, hence this letter of request."
In fact, it was not Ramaphosa who said Mkhwebane should be investigated for perjury.
In August last year, Ramaphosa's attorney, Peter Harris, filed court papers in which he said Mkhwebane had "opportunistically flip-flopped" on the text of the Executive Ethics Code to make false findings Ramaphosa and Public Enterprises Minister Pravin Gordhan had misled Parliament.
Harris asked that the Constitutional Court should refer its CR17 ruling to National Director of Public Prosecutions Shamila Batohi "for investigation of the conduct of the Public Protector".
Harris' affidavit was deposed after the impeachment motion had been adopted, and such a perjury charge is thus not before the Section 194 Committee.
Meanwhile, Mkhwebane is already facing perjury charges stemming from the court findings on her discredited CIEX report.
Last week, on the second day of the hearings, UDM leader Bantu Holomisa, in a somewhat rambling input, said Ramaphosa should be called to explain whether public funds were used in his CR17 campaign.
However in her report, Mkhwebane herself never claimed public money had been used in his campaign.
She found Ramaphosa's campaign was implicated in money laundering and potential state capture, even though she did not disclose the identities of his donors.
These findings have since been invalidated.
The Presidency rejected Holomisa's suggestion and said his claims were "baseless, misdirected and vindictive".
"It is an abuse of parliamentary processes and privilege. It has never been alleged that public funds were used by the CR17 campaign," presidential spokesperson Vincent Magwenya said in a statement.