PUBLIC Protector advocate Busisiwe Mkhwebane
Picture: Bongani Shilubane  African News Agency (ANA)
PUBLIC Protector advocate Busisiwe Mkhwebane Picture: Bongani Shilubane African News Agency (ANA)

Mkhwebane faces fresh court battle

By KAILENE PILLAY Time of article published Sep 27, 2019

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Durban - Public interest group Accountability Now has brought a court application for an order declaring Public Protector advocate Busisiwe Mkhwebane unfit for office.

Its case is based on adverse findings made against her in the Constitutional Court regarding the Absa/Bankorp matter.

Accountability Now has launched the urgent application in the Pretoria High Court and the matter has been provisionally enrolled for October 22.

While court papers have been filed, the director for Accountability Now, Paul Hoffman, said the group was advised not to release the court papers to the media until the case was heard later next month.

“The advice was from the court so that it would stop a public debate until the case is heard. So we will not be releasing those court papers until then,” he said.

Hoffman explained that Accountability Now was relying on findings by the Constitutional Court which upheld a costs award made against Mkhwebane.

The Concourt found Mkhwebane’s model of investigation in the matter involving Absa/Bankorp and the SA Reserve Bank (Sarb) was flawed and that she had been dishonest about her meetings during the investigation.

The Concourt was dealing with the appeal after the Pretoria High Court had earlier set aside and reviewed the remedial action put forward in Mkhwebane’s report, “Alleged Failure to Recover Misappropriated Funds”.

The report had been taken on review by Sarb, the finance minister, National Treasury and Absa.

The high court had ordered Mkhwebane to pay Sarb’s costs in her personal and official capacity.

After the Constitutional Court upheld the costs award on appeal in July this year, Accountability Now said it decided to take up the issue of Mkhwebane’s fitness for office.

“The two findings we are relying on in this case is that the public protector was found to have lied under oath and the court also criticised her methodology in that it seemed she was not taking on the rules of natural justice and revised the way that her predecessor Thuli Madonsela used to run the office of the public protector,” Hoffman said.

He added that the matter was urgent as Mkhwebane had already cost the country by her “bizarre” suggestion that Sarb should expand its mandate.

“The result of her suggestion has scared off investors that South Africa so desperately need.

“The public’s interest is not being served by her remaining in office,” he said.

The organisation also asked the Legal Practice Council to investigate Mkhwebane’s conduct with a view to moving to strike her off the roll of advocates, which would render her ineligible for office.

The group also asked that the criminal justice administration investigate a charge of perjury against her arising out of the Concourt findings, while the president was asked to suspend her and the justice portfolio committee was asked to investigate her methodology and mendacity.

Parliament was, however, still formulating the process to follow to remove the head of a chapter nine institution.

“The Pretoria High court has now been approached to grant declaratory and mandatory relief in respect of her conduct and her competence by declaring that the public protector no longer fit for office.”

The office of the public protector did not respond to a request for comment yesterday.

The Mercury

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