Parliament - Public Protector Busisiwe Mkhwebane has written to Parliament's portfolio committee on justice that it lacks sufficient grounds to remove her from the post, as displeasure with her performance was not among the causes for removal set out in the Constitution.
"This committee's displeasure at my performance is not enough to warrant my removal," Mkhwebane said in a submission circulated late on Monday to members of the committee.
Mkhwebane had been due to appear before the committee on Tuesday morning to respond to a call by Democratic Alliance chief whip John Steenhuisen for members to institute an inquiry for her removal. She opted to respond in writing instead and deliberations on her submission were postponed to a later date because MPs had not had adequate time to study it.
In the letter, Mkhwebane said Steenhuisen advanced that she was incompetent but failed to appreciate that there was a very high threshold for that to pass as cause for removal, especially if, as in her case, no warning had been issued that she was failing to meet the standard set for the job.
"For this committee to start the removal process, there must be some serious misconduct or substantial incompetence and the onus of proving just cause rests with Mr Steenhuisen, who has dismally failed to discharge that onus or any of the objective standards listed above."
She had pointed out that section 194(1) of the Constitution gave the grounds for removal as misconduct or incapacity, a finding to that effect by a committee of the National Assembly and the adoption by the chamber with a vote of at least two-thirds of members of a resolution calling for removal.
Mkhwebane bitingly added that she believed the DA was "deceivingly" conflating its own disappointment at her appointment in 2016 with the actual level of her performance.
"My performance speaks for itself," she said, adding that in the past two years she had a workload of 25,288 complaints.
"Of these, we finalised 21,176."
Steenhuisen's reasons for calling for Mkhwebane's removal include her conduct and report in the Absa-Bankorp matter, which drew a scathing finding from the North Gauteng High Court.
It set aside the report, following a challenge by the South African Reserve Bank, and Mkwebane was ordered to pay 15 percent of the bank’s legal costs in her personal capacity, with her office footing the rest of the bill.
Mkhwebane ordered Absa to repay R1.125 billion for a lifeboat provided to Bankorp by the Reserve Bank during the apartheid era, and went further to call on parliament to consider passing legislation to alter the mandate of the SARB.
Judge John Murphy noted that Mkhwebane had amended the scope of the investigation without warning the interested parties and had failed in her duty, and thereby inflicted damage on the economy and the reputation of her office.
Steenhuisen recalled that the judge had also found that she had grossly exceeded her powers and that the report had immediate and severe consequences, with the local currency shedding value and S&P Global warning that if it were implemented it would downgrade South Africa’s credit rating further.
In her submission, Mkhwebane said her office was being treated unfairly compared to the manner in which judges were treated by Parliament, while the constitution guaranteed the independence both of courts and of the chapter nine institution.
She drew a parallel between her situation and that which arose in 1999 when it was reported that Parliament had summoned a judge who was seen as having passed a too lenient sentence to a man convicted of raping his 14-year-old daughter.
On that ocassion, then chief justice Ismail Mahomed and Constitutional Court president, Judge Arthur Chaskalson, swiftly pointed out judges could not be required by the legislature to explain the reasons for their rulings as this would violate the constitutional separation of powers.
"In the specific case of myself, separation of power issues are not directly at stake but equally weighty issues of decisional independence are at play. Decisional independence allows judges and adjudicators to make decisions freely, without being swayed by concern for political or career consequences, or for public backlash."