Suspend and make the Public Protector accountable

29 April 2022

Cape Town, 29 April 2022: Anti-Corruption watchdog organisation, Accountability Now, has written to President Cyril Ramaphosa, demanding the suspension of Public Prosecutor, Busiswe Mkhwebane.

The president is considering suspending the Public Protector, who faces removal from office proceedings in the National Assembly. According to the Public Protector she behaves accountably and the president is too conflicted to suspend her due to pending investigations of him by her.

Paul Hoffman, SC, Director, Accountability Now, wrote to the Public Protector in April 2022*, challenging her to behave accountably by answering questions put to her in January 2017, questions which remain unanswered. The Public Protector did not reply to Accountability Now.

The matter has been escalated to the president who has been asked to suspend the Public Protector, or, if there is a risk of a conflict of interest, to get the Deputy President to consider the matter of her suspension. The relevant correspondence is attached to this media release.

The presidency has acknowledged receipt of the email addressed to him*, neither the Public Protector nor the Justice Portfolio Committee have responded at all to the emails addressed to them.

Mkhwebane needs to “own up” and face the consequences

Public Protector Busiswe Mkhwebane has taken to shooting herself in both feet. Her complaint to the Judicial Service Commission regarding the strongly worded judgment of the majority of the Constitutional Court against her, penned by retired Justice Chris Jafta, is so wide of the mark, misconceived and inappropriate that it can best be regarded as a stratagem in a scheme of delaying tactics rather than as a serious complaint.

Her litigation to ward off or delay the long overdue proceedings for her removal from office offends the basic tenets of the rule of law. Finality in litigation ought to be achieved when the highest court in the land has ruled on a matter. While a tenuous procedural right to claim rescission of the final ruling of that court exists, it ought not, in the public interest, hold up the proceedings required by the constitution. The National Assembly has a duty to act diligently and without delay when any Public Protector goes rogue. There is ample evidence that the music needs to be faced without delay and that dilatory skirmishing should not be countenanced by the courts.

It is worth noting that as long ago as January 2017 Accountability Now asked the justice portfolio committee to get answers to 13 questions posed to the then newly appointed Public Protector, answers to which would reveal her competence, probity, integrity, and fitness for office. As her oversight body, the committee is empowered to exact accountability. To date it has not done so even though the Public Protector admits that she is accountable to parliament. It is not too late to ask her to answer the questions she has been ducking. Her answers are bound to be revealing.

Below is the letter Accountability Now wrote the Public Protector, Busiswe Mkhwebane:

“Dear Advocate,

In an interview which you gave to eNCA on Monday 4 April 2022 you contended that you are not pursuing legal action concerning your removal from office to avoid accountability. You also denied that you are adopting what is known as a “ Stalingrad strategy”  to stall your much-delayed impeachment process in the National Assembly. You indicated during the interview that your report in our Ciex complaint to the Office of the Public Protector is the reason for your being “targeted”.

May we respectfully remind you that you refused to account to us, as complainant in the Ciex matter, as long ago as January 2017, and have not done so since. Our Ciex complaint was against the State Security Agency for its wasteful expenditure on the contract it concluded with Ciex, it was not a complaint against Bankorp or the Reserve Bank.

For reasons best known to you, our complaint was construed by you as one entitling you to make unusual and uncalled for findings concerning Bankorp and to direct parliament to amend the Constitution to alter the role of the Reserve Bank in our constitutional dispensation. Those findings were very properly set aside by the High Court on review and your appeal against the review findings was a dismal failure.

The Constitutional Court found that you had lied on oath in the affidavits you filed in the matter. You are currently stalling the perjury case against you, which is based on the judgment of the Constitutional Court, a prosecution which the National Director of Public Prosecutions regards as one with reasonable prospects of success, by reviewing her decision to proceed to prosecute you for perjury.

You may refresh your memory of your conduct in the investigation and reporting on our Ciex complaint by exploring this link. Your attitude then, as appears from your email to us of 14 January 2017, was that you were not prepared to investigate yourself and that you were only accountable to the National Assembly, an accounting which, to the best of our knowledge, has yet to occur more than five years later. We submit that you are accountable to those who file complaints in your office as well as to the National Assembly, your oversight body.

We place on record that we have yet to receive a response to the 13 questions we posed to you in our email to you dated 13 January 2017 and have never received your provisional or final report in the matter from you. You have not accounted to the National Assembly on the matter in any way, shape, or form as far as we are aware. We renewed our request to the Justice Portfolio Committee after the 2019 general elections, but it has not responded to us at any stage.

We suggest, with respect, that if you wish to be accountable, as you should, given the provisions of section 1 (d) of the Constitution, then the appropriate place at which to start is by answering all 13 questions now. We apprehend that you have not done so because any replies will impact negatively on your fitness for the high office you hold.

Should we not hear from you in response to this email by noon on Friday 8 April 2022, we shall take such further steps as we may be advised, including making this email and your response, if any, available to the media.

The Secretary of the Justice Portfolio Committee is copied on this email for the information of the committee.

Yours in accountability,

Paul Hoffman SC

Director

Institute for Accountability in Southern Africa

Campaigning as Accountability Now”

Below is the letter Accountability Now wrote to President Cyril Ramaphosa:

“Dear Mr President,

We address you in relation to the provisions of section 194(3) of the Constitution in terms of which you may suspend the Public Protector. We understand from media reports that you are considering doing so.

We request that our email to the Public Protector (copied to the Justice Portfolio Committee in the National Assembly)  and forwarded below be taken into account when you consider the representations made to you by the Public Protector concerning her suspension. Neither the Public Protector nor Parliament has responded to our email forwarded below. We have not heard from the Public Protector or the JPC since 2017  At the very least, the Public Protector should be put on terms by you to answer the questions we have raised as they are clearly relevant to her suspension in that her integrity and competence are put in issue.

As regards the allegation by the Public Protector that you are too conflicted to suspend her, we respectfully draw attention to the provisions of sections 96(2)(b) and 90 (1) of the Constitution. Should there be “the risk of a conflict” ( no actual conflict need arise as was decided by the Concourt in the Nkandla matter ) then you are “unable to fulfil” the duty to suspend and the Deputy President can act in your place. If there is no such risk you are constitutionally empowered to suspend, which we urge you to do.

In the interests of governance that is open, accountable, and responsive we shall make this communication available to the media.

Yours in accountability,

Paul Hoffman SC

By Paul Hoffman SC, Director, Institute for Accountability in Southern Africa, Campaigning as Accountability Now