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Business body wants Parliament to remove Public Protector

May 29 2019 17:54
Lameez Omarjee, Fin24

Business Unity South Africa believes Public Protector Busisiwe Mkhwebane is not "competently and fairly" upholding the Constitution, nor is she representing the interests of SA, and that she must be removed.

The business lobby's president, Sipho Pityana, on Monday submitted a petition to new Speaker of the National Assembly Thandi Modise, to institute proceedings to have Mkhwebane removed. 

"We, as an important representative of organised business in South Africa, do not believe that the current Public Protector is competently or fairly upholding the Constitution and representing the interests of SA," Pityana said, in a letter Fin24 has seen.

The Speaker cannot herself rule that the Public Protector be removed. But she can order that a committee of Parliament be tasked with investigating Mkhwebane. If that committee were to make a findings of misconduct, incapacity or incompetence against her, Mkhwebane could be removed if a subsequent resolution calling for her to go were approved by over two-thirds of the members of the National Assembly.

'Extraordinary Request' 

"BUSA has been driven to make this extraordinary request by the accumulation of the missteps and the unconstitutional behaviour by the current Public Protector since she took office three years ago, which has the effect of creating significant policy and institutional uncertainty at a crucial time in South Africa's history," Pityana said.

On Friday Mkwebane found that when Pravin Gordhan, when he was minister of finance in 2010, should not have approved the early retirement with full benefits and subsequent re-employment of Ivan Pillay, then-deputy commissioner of the SA Revenue Service. Shortly after the report was released, Gordhan, Pillay and former SARS commissioner Oupa Magashula separately said they intended to challenge the ruling. 

Mkhwebane's spokesperson Oupa Segalwe, in response, said that those who were aggrieved with Mkwebane's findings were welcome to approach the courts. "If those found to have acted wrongly are aggrieved at the Public Protector's findings and remedial action, they have the right to approach the courts for recourse," he said.

The Public Protector, in a video uploaded onto her official Twitter account, said the perception that she focuses the attention of her office on certain individuals was factually wrong, adding that 90% of her findings go unnoticed in the media as they do not concern prominent individuals. 

On Tuesday, lawyers for Gordhan filed a review application asking the North Gauteng High Court to set aside the report. Gordhan, in an affidavit, accused Mkhwebane of exhibiting 'stunning incompetence, irrationality and negligence' in the performance of her duties. 

'Disrupt stability' 

Pityana said Mkhwebane's findings around Gordhan were "deliberately designed to disrupt political and economic stability in the country", given the timing of its release. Mkhwebane issued the report on May 24, a day before President Cyril Ramaphosa's inauguration – at a time when important political decisions need to be taken, Pityana said.

"The Public Protector's failures and deliberately disruptive actions threatens South Africa's project of economic justice, certainty, security and for these reasons the Public Protector must be removed," he concluded. The timing of the report has also been criticised by the Ahmed Kathrada Foundation as a "administrative charade". 

Mkhwebane, meanwhile, has received support from the Economic Freedom Fighters, who have said that Gordhan should not be reappointed to Cabinet in the wake of her report. On Tuesday, in an interview with eNCA, EFF leader Julius Malema described Gordhan as a "crocodile" which the EFF has by the tail.

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