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Public Protector Busisiwe Mkhwebane faced a barrage of questions on why she was not at a scheduled Parliamentary meeting last week.
Parliament’s portfolio committee on justice and correctional services quizzed, queried and questioned Mkhwebane on Wednesday morning with full force after she failed to appear at a scheduled meeting on June 8.
“I would like to again apologise for not being able to make it on June 6,” she said as she submitted her apology in person, citing a family emergency.
Members of the committee took turns in vocalising their anger with many saying it was a slap in the face and utter disrespect.
Committee chair Mathole Motshekga also had to deal with Mkhwebane’s apparent letter that she said she sent on May 18 explaining why she could not delegate certain duties to Deputy Public Protector Kevin Malunga, including that of having him represent her in Parliament.
“I couldn’t send my deputy as I thought the issues, especially on the rules and policies of the office, required my special attention,” she said.
However, when asked to see the letter by committee members, Motshekga said that it was not the “appropriate time” and that he would be sending it to the Office on Institutions Supporting Democracy to determine its authenticity.
Committee members did not take kindly to this with DA MP Glynnis Breytenbach chirping that “now would be the appropriate time”.
Eventually the committee was brought to order and Mkhwebane was then tasked with explaining issues relating to rules of the Office of the Public Protector as well as the appointment of her special adviser.
Mkhwebane’s ‘very’ special adviser
MPs were particularly interested in a special adviser who, according to Mkhwebane, “only deals with the issues of advices, especially on the decisions that I have to take” and not on the actual reports.
The adviser – “who is a conveyancer, has been legally admitted and has experience in banking law” – had been appointed in the legal services division by Mkhwebane to “beef it up”.
However, even though the adviser, Sibusiso Nyembe, was working in the Office of the Public Protector, he did not fall under the ambit of the rules and regulations governing the staff of the Public Protector because he was “appointed as a contract worker”.
Mkhwebane said that she did not wait for approval from the minister of finance and Parliament as required by the Public Protector Act because “the functioning of the Public Protector processes cannot be halted while waiting for the processes to unfold”.
Mkhwebane said that she had written a letter in February to the finance minister and heard nothing back.
Her office then received a note in April asking for clarification and in June she was told that the head of treasury could not support this appointment. Mkhwebane had also written to the Speaker of Parliament, Baleka Mbete, but heard nothing back.
Compensation for Nyembe was also determined by the Public Protector before approval could be granted. This compensation, she admitted, was paid from savings from posts that have not been filled, like the chief executive’s post and certain special investigators.
Mkhwebane said she faced issues in trying to secure security clearance for her adviser, but Breytenbach took umbrage to this statement and asked for clarity on the situation.
“The deputy public protector is precluded from functioning in your office and doing his job because you have an issue with his security clearance, yet your special adviser has free reign. Could you clear that up for me, please?”
Mkhwebane was spared by Motshekga who brought the session to an end and said that those questions were not relevant and would be dealt with when the Public Protector appeared before the committee again.
“I would rule that we can’t take this matter any further and that we must allow the Public Protector to go back to the people who are letting her down [and allow them] to do their work.”
Is Mkhwebane fit for office?
In the Wednesday afternoon session during which Mkhwebane was absent, Motshekga kickstarted the meeting with a long address about how bizarre the situation before them was in that a chief whip from a party that is represented within the committee was granted the opportunity to complain about Mkhwebane’s fitness.
“I want to repeat that this committee is represented by all the political parties of this Parliament, represented by people that are competent and who can do the work and why we should get a chief whip to come here and be a complainant, I don’t understand,” he said.
The African Christian Democratic Party’s Steve Swart disagreed with Motshekga’s outlook and said that “the complaint was addressed to the Speaker [and] was not addressed to the committee, and the Speaker has referred it to us to consider.”
Other members of the committee also agreed with this sentiment and Motshekga said that he would seek clarity “from the higher-ups” on what the correct course of action was.
Nevertheless, DA MP John Steenhuisen – who laid the initial complaint and was the chief whip being referenced – was then given time to address the committee.
He argued that an inquiry had be set up into the fitness of the Public Protector due to court findings that “speak to the [lack of] competence of the Public Protector in terms of her mandate and the most basic grasp of the law”.
Steenhuisen said that even though the North Gauteng High Court ruling is set for appeal, what is not set for appeal is that the court “criticised her for a fundamental breach of the Constitution, criticised her for a complete lack of understanding of the mandate of her office and criticised her vociferously for her intrusion on the powers of this Parliament”.
“I believe that at the very least there are sufficient grounds to conduct an inquiry into the fitness of the Public Protector to hold office,” Steenhuisen concluded.
After another round of deliberations and inputs, Motshekga concluded that Mkhwebane must be given the right of reply before the committee can decide on an inquiry.
“All that I can do, to be fair to her and to you [Steenhuisen], is to refer your presentation to her for her comment and then ask her to comment on that in writing. Then come back to this committee so that we look at what she said and then decide on whether we should hold an inquiry,” Motshekga said.
Despite Breytenbach and others asking about timelines, none were set with Motshekga saying that he would follow up on it “timelously”.
- Additional reporting by News24
