Sibusiso Nyembe SC says the DA’s request for the institution of removal proceedings against Public Protector Advocate Busisiwe Mkhwebane is one of a series of tactics meant to intimidate and instil fear in the PP so that she stays away from the CIEX Report, which exposes billions stolen from the public purse, with the help of the South African Reserve Bank, in the years leading up to the democratic dispensation.
Advocate Busisiwe Mkhwebane
At the core of our Constitution are the values of fairness; non racialism and Separation of Powers doctrine as the cornerstone of our Constitutional Democracy.
The Portfolio Committee on Justice and Correctional Services (“JCSP”) has yesterday, on instigation by the Democratic Alliance (“DA”), agreed to hold an inquiry into the request to remove the Public Protector (“PP”).
It is important to remind ourselves that the DA was the only party that didn’t support the appointment of Ms Busisiwe Mkhwebane and even denigrated her by calling her a spy.
Also important to mention is that the PP recently laid a criminal charge against a Senior DA member for leaking a confidential report by the PP office.
However, in my view it is the CIEX matter and the litigation unfolding over it, that I believe is at the root of the present DA manoeuvring. The PP is being accused of “irrationality” on several grounds among which are that;
(i) she got her facts wrongs;
(ii) the facts upon which she based her findings are prescribed;
(iii) she lacks jurisdiction to investigate the matter;
(iv) in reaching her conclusions and remedial actions she was procedurally unfair; etc.
The Office of the Public Protector is a Chapter 9 institution. Institutions under this chapter are designed to strengthen constitutional democracy.
Therefore the PP is by law expected to execute her mandate with fairness, without fear, favour and/or prejudice. When there is no fear on the part of the PP it is believed there will be fairness and objectivity in the conduct of her business and in the judgments and decisions she makes. Fairness is devoid of favour and prejudice.
Overlooking an investigation of a complaint; deliberately delaying finalising investigations and reporting on them as enjoined by Public Protector Act can be seen as favoritism to others and may lead to prejudice to another.
Since releasing her CIEX Report on the 19 June this year, the PP has never known peace. She has been subjected to a barrage of media attacks; her qualifications questioned; issued with several court actions; all with the intention to intimidate and instil fear in her so as to scare her away from the CIEX matter.
The CIEX complaint was brought to the PP office in November 2010 and has remained pending until the appointment of Ms Busisiwe Mkhwebane. At the heart of this matter is the looting of public resources orchestrated via South African Reserve Bank (“SARB”) during the twilight of Apartheid.
Perhaps because of “low intensity intimidation”, possibly instilled against the former PP Ms Thulisiwe Madonsela, the perpetrators and/or beneficiaries of the loot were able to suppress the investigation of the CIEX complaint and delay its finalisation. Barely 12 months into office Ms Mkhwebane has been able to render the final report into this matter, of course on the basis of extensive work done by her predecessor, but surely a sign of great fearlessness on her part!
Despite all the aforementioned forms of intimidation mounted against her, Ms Mkhwebane has not relented in her pursuit of jusitce for the South African people. All she did was to strategically concede in an urgent court application that was spearheaded by SARB decrying alleged overreach in her proposal that constitutional changes to the SARB mandate be considered. Indeed that concession was strategic because that urgent court application sought to divert attention from important issues of the CIEX Report, but, at the same time it took the intimidation tactic to a higher level – the court. It is clear to discern intimidation when reading the 15 August judgment in the matter by Judge JR Murphy. Here’s the judgement http://www.saflii.org/za/cases/ZAGPPHC/2017/443.html
Surely Ms Mkhwebane is not intimidated because she hasn’t conceded in the other cases and the public is keenly awaiting her consolidated Answering Affidavit, (responding to all the review cases by SARB; ABSA and National Treasury), due towards the end of this October month. And, this is precisely what the perpetrators/beneficiaries of the loot don’t want to see happening, for they fear exposition of damning information on how the looting was carried out and why the court should dismiss their review application. Hence these desperate moves to discredit the PP, the latest being the removal inquiry, which are none other than taking the intimidation tactic to a higher level – Parliament! This is just to harass and discredit the PP before the unsuspecting eye of the public, for the DA knows very well how hopeless their attempt at her removal is!
Our Constitution guarantees non racialism. However we now know, through observation that any action by any constitutional body / government functionay / ordinary person directed at redressing grievance by and advancing Black interest is met with stern opposition. The sitting President is a good example in this regard. When he made a decisive break between the interests of White Monopoly Capital and those of poor Black majority by calling for land expropriation and Radical Economic Transformation (“RET”) policies, we saw the intensification of efforts at removing him from the Presidency. Of course those efforts at unseating him had long been in place. The President, from day one was not trusted, as is the case with this PP.
Mr Hlaudi Motsoeneng is today out of the SABC and his worst offence was to prioritise the commercial interests of South african artists. We can mention a long list of prominent and unsung heroes of our revolution that were wrongly removed from positions of authority and power. Black economic emancipation/advancement is not sine qua non for White subjugation/regress/stagnation. It is viewed as threatening White privilege.
The PP is facing the same fate today. The PP is not confused about who she is; does not by conduct aspire to be somebody/something else than what she authentically is.
Any Black incumbent of a powerful position is correct and celebrated as long as (s)he uses that power to maintain the status quo that ensures White supremacy and privilege. Therefore, from the standpoint of those resisting transformation the Constitution is okay when it is used to quell any Black aspirations for a better life for all.
Thus the non racialism guaranteed by our Constitution is a pipedream for the majority, and, whoever tries to initiate steps towards realisation of same, like PP has done since ascending office, is dealt with accordingly and by any means possible – by the forces who see the demise of their privilege and dominance when favouritism and racial biasness is resolutely challenged!
Separation of Powers
The principle of Separation of Powers requires constitutionally established institutions to respect the confines of their own powers and not intrude into the domain of others.
Pertaining the removal of the PP, the DA proposal is allegedly based on the reason that “she overrreached her powers in the SARB and the ABSA/Bankorp matter“.
Now, although the Murphy judgment case which set aside the remedial action 7.2 (which was about the amendment of the SARB Constitutional mandate) was instituted as a separate application with its case number, and, to which the PP conceded, the reality of the story is that the whole CIEX Report court issues are sub judice before the justice system, a judicial arm of the state bound by the separation of powers doctrine. They are so because all consolidated high court cases flowing from the PP CIEX Report of the 19 June 2017, in which the bulk of the issues (including issues pertaining to the SARB mandate and the manner it was exercised in the ABSA/Bankorp lifeboat) still remain to be determined by the court. That being the case is it therefore not true that:
- the Parliament’s deliberations on the DA proposal violate the doctrine of the separation of powers guaranteed by section 1 (c) of the Constitution;
- the Parliament’s deliberatios on the DA proposal will have an effect of intimidating the PP thereby negatively affect her legislative obligation to exercise her powers without fear, favour and/or prejudice?
It is important to point out that the PP is still to file her comprehensive response, in the form of an Answering Affidavit, to the consolidated cases, which response is due towards the end of October. How then does our esteemed PP freely, without fear, favour and/or prejudice attest to the pending Answering Affidavit, in the light of this onslaught against her, now through Parliament platform?
Therefore it can be concluded that the entertainment by Parliament of the proposal by DA to have PP removed while the CIEX court cases are pending in another arm of the state – the judiciary – shall certainly offend the principle of separation of powers. Further, such entertainiment of the DA proposal will inhibit fearless execution of legislative mandate of the PP.
Further, it should here be mentioned that it is doubtful whether the Committee has locus standi on the functional work by the PP. Already the Chairperson of the Committee Dr Mathole Motshekga has expressed his concerns whether Committe is the right forum and competent authority to deal with inquiry into the request to remove PP. This may be outright interference with the independence of the PP!
The issue about the Deputy PP which forms the second aspect of the DA proposal is a disguise of the malice haboured against PP, (the actual DA’s target) and intended to give credence and innocence to DA’s mischief.
The insistence that the initial application (that was concluded by Murphy judgment) be argued in open court and full judgment be given thereto despite the PP concession, and despite exhorbitant costs associated with appearing in court, aroused suspicions on our part. It indeed boggled the mind why court resources had to be wasted; top lawyers convened for arguments when the Respondent (PP) had timeously conceded, where objectively the bulk of the issues still remained before court as they are today and thus a chance to have a bite on any issue not foreclosed. Today’s reliance by DA on that judgment to have the PP removed from office confirms our initial suspicions. It is clear that the PP’s mero motu concession was not going to be enough and appropriate for future use against her, therefore judgment by a court was needed to lend it semblence of an objective finding.
This move to have Parliament inquire into the PP fitness to hold office is nothing but a scare-tactic to stop the PP “in her tracks” from “causing extensive damage” by exposing apartheid illegal and highly protected secrets. It is also an attempt to elicit information about how far she’s gone in uncovering critical information, in the process of preparing her Answering Affidavit – the recent media attacks having failed to get her volunteering such.
Like previous similar tactics by the opponents of transformation this one too will fail spectacularly.
Nyembe SC is a member of the group Lawyers for Radical Economic Transformation (LawRET)