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Public protector Busisiwe Mkhwebane.
- There is prima facie evidence of incompetence and misconduct against Public Protector Busisiwe Mkhwebane, an independent panel found.
- The panel recommends that the National Assembly continue to investigate his suitability for the position.
- The National Assembly will have to consider the panel’s report first.
An independent panel found there was prima facie evidence of incompetence and misconduct on the part of defender Busisiwe Mkhwebane.
The panel recommended that Parliament proceed with an investigation to determine whether she should be removed as a public protector.
In November, the Speaker of the National Assembly, Thandi Modise, appointed Judge Bess Nkabinde, defender Dumisa Ntsebeza and lawyer Johan de Waal to the panel.
His report was published on Monday.
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The panel considered information such as the motion to initiate a deportation procedure by the head of the prosecution, Natasha Mazzone, preferred charges against Mkhwebane, numerous reports, allegations presented in various courts against and by her, sentences and the written response from Mkhwebane to the panel.
“The findings, after preliminary evaluation, are that there is substantial information that constitutes prima facie evidence of incompetence,” says a statement from parliamentary spokesman Moloto Mothapo.
Examples of such incompetence are:
- the prima facie evidence showing Mkhwebane’s overreach and the limits of his powers in terms of the Constitution and the Public Protection Act;
- repeated errors of the same type, such as incorrect interpretation of the law and other patent legal errors;
- not giving audi (right to be heard) to affected people;
- incorrect factual analysis; Y
- sustained lack of knowledge to carry out their duties or inability or ability to perform their duties effectively and efficiently as required by the Constitution.
“According to the panel, these cases, evaluated cumulatively, meet the prima facie evidence threshold of sustained incompetence.
“The panel also concluded that there is sufficient information that constitutes prima facie evidence of misconduct.”
Examples of misconduct are:
- The fact that Mkhwebane did not reveal that he had meetings with the former President of the Republic and the State Security Agency;
- honor an agreement with the SARB, thus showing the breach of a high standard of professional ethics as required by the Constitution and investigate the third complaint about the alleged participation of certain politicians in the Vrede Milk Project;
- his alleged modification of the final report and providing a false explanation to a review tribunal as to why it was done, as well as his evidently erroneous conclusions about money laundering in the CR17 Campaign matter, and his inexplicable doubts about the good faith of the president (the latter constitutes prima facie evidence of both incompetence and misconduct).
As such, the panel recommends that the charges, based on the findings of prima facie evidence of incompetence and misconduct, be referred to a committee of the National Assembly for investigation.
The rules require Modise to schedule the recommendations for a decision by the National Assembly.
If the House decides that the investigation should continue, it should be referred to a special section 194 commission for a formal investigation.
Modise must inform the president of any action or decision derived from the recommendations.
The process first began in December 2019, when Mazzone filed his motion with Modise days after the National Assembly adopted the rules for the removal of the director of a Chapter 9 institution. Mazzone, in early 2020, withdrew his initial motion and replaced it with one containing more evidence.
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On Monday, Mazzone welcomed the panel’s finding and urged Parliament to proceed without delay.
“The district attorney believes that it is of the utmost importance that Mkhwebane is removed as Public Protector and that someone competent, credible, and independent be appointed to this position to restore the public’s trust in this crucial Chapter 9 institution, and to ensure that once again the interests of the vulnerable would be protected over the interests of the politically connected, “Mazzone said in a statement.
The process was interrupted when Parliament had to deal with the Covid-19 pandemic.
Meanwhile, Mkhwebane tried unsuccessfully to obtain a court injunction to stop the process, pending his challenge to the rules that the National Assembly adopted for the process.
The pending case does not prevent Parliament from continuing with its process.
News24 reached out to the Office of the Public Protector for comments, which will be reported upon receipt.
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