Public Protector Advocate Busisiwe Mkhwebane. Picture: Oupa Mokoena/African News Agency (ANA)
Public Protector Advocate Busisiwe Mkhwebane. Picture: Oupa Mokoena/African News Agency (ANA)

Game over for Public Protector Busisiwe Mkhwebane, says Tito Mboweni

By Sihle Mlambo and Loyiso Sidimba Time of article published Mar 11, 2020

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Johannesburg - Finance Minister Tito Mboweni has called on Public Protector Busisiwe Mkhwebane to "fall on her sword" after another bruising court judgment against her in the North Gauteng High Court on Tuesday. 

Mkhwebane had released a report last year, where she found President Cyril Ramaphosa had deliberately misled Parliament about a R500 000 donation his CR17 ANC election campaign received from the late Bosasa businessman Gavin Watson.  

In passing down judgment, Judge President Dunstan Mlambo found that Mkhwebane’s report released in July last year was fundamentally flawed. As a result, the judges declared it invalid and set it aside. 

Not one to toe the party line, Mboweni took to social media just after 9pm on Tuesday night and actively called for Mkhwebane’s removal. 

ANC national spokesperson Pule Mabe had earlier said the party had not taken a decision on the removal of the public protector because the matter had never been discussed at the party’s national executive committee meetings. A DA-sponsored motion has been tabled in Parliament to remove Mkhwebane.

Meanwhile, EFF leader Julius Malema and his deputy Floyd Shivambu were among the more prominent people to defend Mkhwebane after Mboweni’s late night tweet. 

Malema promised Mboweni that it would take a hard battle to remove Mkhwebane, while Shivambu proclaimed her removal from office ‘will not happen’.

Mkhwebane herself told PowerFM last week that she would stay in office until her term ends in 2022. “It will not happen without a fight, not a promise but a commitment,” Malema told Mboweni.

“Well that, unfortunately, will not happen! The @PublicProtector is not going anywhere and will not fall on any sword for exposing callous and greedy capitalists who bought a president to manage their common affairs,” charged Shivambu at Mboweni.

ATM’s head of policy and strategy, Mzwanele Manyi, said Mboweni should be the one resigning because of the country’s crumbling economy. 

“But under your stewardship the economy is crumbling. Economic Growth 2020 = 0.9%, debt to GDP Ratio 2020 = 65%, two recessions in two years, irregular expenditure up by R10bn, tax collections dropped. Maybe you should lead by example, and submit your resignation,” Manyi told Mboweni.

The social media battle was happening in the backdrop of the EFF saying on Tuesday that it would approach the Constitutional Court to overturn what it called as the court’s decision to “absolve the president from accountability”, saying the ruling had rendered the oath of members of Parliament “futile”. 

“The finding that Ramaphosa did not mislead Parliament is not only ridiculous, it exposes the court as an institution complicit in weakening Parliament,” the party said in a statement. 

But it also appeared that the judgment has refuelled calls by the opposition for Mkhwebane to be axed. 

The DA said Mkhwebane was not fit to hold office and that her appointment was politically motivated, adding that she was unable to carry out her duties to protect the public in an unbiased and competent manner. 

The Organisation Undoing Tax Abuse meanwhile said Mkhwebane had to do the honourable thing and vacate her office as she was failing to fulfil her constitutional duties. 

“It is difficult to understand how the president’s answer could rationally be viewed as anything but honest and reasonable given the nature of (former DA leader) Mmusi Maimane’s questions,” read the judgment. 

The judges also maintained that the evidence presented in court supported Ramaphosa’s version that he acted in good faith in providing Mkhwebane with answers relating to the donation. 

“What is more troubling is that the president dealt with the public protector’s acceptance of his bona fides when he responded to her Section 7(9) notice when his response recorded that ‘the public protector has correctly found that the president acted in good faith’,” the judges said. 

The judges said this was where the matter should have ended and any suggestion that Ramaphosa contravened the executive ethics code was incompatible with Mkhwebane’s own finding that his response to former DA leader Mmusi Maimane was given honestly and in good faith. 

According to the judges, it was irrational for Mkhwebane to make a finding that Ramaphosa misled Parliament on the basis that he should not have answered Maimane’s question before checking her facts first. 

The judgment also highlighted that Maimane’s and the Shivambu’s complaints had nothing to do with the CR17 campaign and that Ramaphosa maintained that Mkhwebane had no jurisdiction to investigate the campaign and its donations. It ordered Mkhwebane to pay Ramaphosa’s legal costs on a punitive scale.

Ramaphosa’s attorney, Peter Harris, described the judgment as a resounding victory for the president and a sad reflection on Mkhwebane. 

Ramaphosa’s spokesperson, Khusela Diko, meanwhile said the high court reaffirmed the president’s assertion that there was no factual basis for the report.

Mkhwebane has been ordered to pay the legal costs of National Assembly Speaker Thandi Modise and National Director of Public Prosecutions Shamila Batohi, against whom she also issued remedial action, and who both wanted the report reviewed and set aside.

This is after Modise had asked the high court to review, declare invalid and set aside these remedial actions and monitoring measures on the basis that they were unlawful and her remedial action was ineffective and encroached on Parliament’s constitutional functions. 

Mkhwebane’s spokesperson Oupa Segalwe said a decision on whether the public protector would appeal against the judgment would be taken after thoroughly studying it. 

IOL and Politics Bureau

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