Parliamentary committee's displeasure 'not enough to remove me' - Mkhwebane
22 August 2018
Public Protector Busisiwe Mkhwebane has come out strongly in defence of her tenure, amid calls by the Democratic Alliance to hold an inquiry into her fitness to hold office.
Mkhwebane was invited to the Portfolio Committee on Justice and Correctional Services on Wednesday to continue the discussions around whether to approve the DA's request to hold a full-blown inquiry.
The opposition party wants to probe Mkhwebane's decisions in office since being appointed in 2016, which it says have been "incompetent", one of the three criteria in which the fitness of the Public Protector can be tested by law.
The other two are serious misconduct, or incapacity.
Mkhwebane was not present at the meeting on Wednesday, but sent a 25-page written response to DA chief whip John Steenhuisen's request for an inquiry.
"Despite the fact that fitness to hold office is not a ground for removal of the Public Protector, as alleged in the letter of Mr Steenhuisen, this committee must go beyond proving displeasure with my performance.
"The ground relied upon in the letter of Mr Steenhuisen is incompetence. 'Incompetence' means that the employee is incapable of performing the job, or the employee is possibly capable of doing so, but consistently failing to meet a reasonable standard of performance.
"This committee's displeasure at my performance is not enough to warrant removal."
Certain MPs 'must recuse themselves'
Mkhwebane said that, upon the very public participation process to elect her in August 2016, 60% of the National Assembly approved of and "showed confidence" in her abilities.
The committee therefore needed to judge the level of the job performance required; the standard that was communicated to her; the suitable instruction that was given to her; whether she was unwilling or incapable of meeting the standard; and whether she was warned that failure would result in removal.
"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."
MPs therefore needed to clarify the "threshold" for incompetence to apply, and whether the employee in question had been warned enough.
In addition, she alleged that some MPs - who she didn't name - had been hostile toward her and wants them to recuse themselves.
She also argued that the committee's procedure had been "Constitutionally infirm", citing some of the matters cited by Steenhuisen, such as the setting aside of her controversial ABSA/Bankorp bailout report, the costs of which is still to be heard by the Supreme Court of Appeal.
The committee had also already "infringed" on the National Assembly's rules and her independence, and the hostility showed toward her made her appearance an exercise in futility, she said.
MPs unhappy with timing
Opposition MPs, notably ACDP MP Steve Swart and DA MP Glynnis Breytenbach, raised their displeasure at only being given the 25-page document at 23:00 on Tuesday evening, when the letter was dated July 5.
Committee chairperson Mathole Motshekga apologised on the behalf of the committee secretariat, but said that the secretariat had also had a busy schedule during the recess period.
He also could not do anything about their "lamentations", and proposed they suggest a way forward, much to the annoyance of Breytenbach.
All MPs, with the exception of the EFF, agreed that the matter should be postponed until next week so that they could consider the document.
The EFF said they did not need more time, and the contents of Mkhwebane's document showed she "was not fit to hold office".
Motshekga also said it was not necessary for Mkhwebane to appear, as her written responses were enough.
The committee will meet again next week to debate Mkhwebane's response.