Busisiwe Mkhwebane

Busisiwe Mkhwebane is a South African advocate and prosecutor who has been a Member of the National Assembly of South Africa since October 2023, representing the Economic Freedom Fighters. She served as the 4th Public Protector of South Africa from October 2016 until her impeachment in September 2023. She is the first head of a Chapter 9 institution to be removed through impeachment.

The Honourable Busisiwe Mkhwebane MP
4th Public Protector of South Africa
In office 19 October 2016 – 9 June 2022 (suspended), 11 September 2023 (impeached)
Appointed by	President Jacob Zuma
Deputy	Kholeka Gcaleka^[1]
Preceded by	Thuli Madonsela
Succeeded by	Kholeka Gcaleka
Member of the National Assembly of South Africa
Incumbent
Assumed office 20 October 2023
Personal details
Born	Busisiwe Joyce Mkhwebane (1970-02-02) 2 February 1970 (age 53) Bethal, Mpumalanga, South Africa
Political party	Economic Freedom Fighters (since 2023)
Spouse	David Skosana
Alma mater	University of the North Rand Afrikaans University University of South Africa
Occupation	Ombudsman advocate prosecutor

Early life and education

Mkhwebane was born in Bethal in the then Transvaal province (now Mpumalanga) on 2 February 1970, matriculating from Mkhephula Secondary School in 1988. She graduated with a BProc followed by an LLB from the University of the North (now the University of Limpopo). Subsequently, she obtained a diploma in corporate law and a higher diploma in tax from the Rand Afrikaans University (now the University of Johannesburg).^[2] In 2010 she completed a Masters in Business Leadership at the University of South Africa.^[3]

Career

In 1994 Mkhwebane joined the Department of Justice as a Public Prosecutor, thereafter from 1996 as Legal Administrative Officer in the International Affairs Directorate. In 1998, she joined the South African Human Rights Commission as a senior researcher. The following year, she joined the Public Protector's office as senior investigator and acting provincial representative. In 2005, she left to join the Department of Home Affairs as the director for refugee affairs, becoming acting chief director in asylum seekers management in 2009.

From 2010 to 2014 she worked as Counselor in Immigration and Civic Services in South Africa's embassy in China.^[4] A report by the Organised Crime and Corruption Reporting Project stated that during this time Mkhwebane's bank account was flagged by HSBC for receiving a US$5000 payment from the Gupta family in connection with a controversial railway contract with China South Rail.^[5][6] Mkhwebane rejected the allegation that she received money from the Gupta family.^[7]

In 2014, she returned to South Africa to serve as a director on country information and cooperation management at the Department of Home Affairs. Mkhwebane then worked as an analyst for the State Security Agency from July 2016 to October 2016 before she was appointed Public Protector in October 2016. During her appointment, it was made known that she had a close relationship with then President Jacob Zuma.^[8]

She served as a board member for the Refugee Fund, where payments for financial assistance are made for refugees in distress.^[9] She serves as the Director of Business Development at Iyanilla Bricks.^[10]

Controversies as Public Protector

A number of notable controversies and related judicial judgments against the Public Protector occurred during Mkhwebane's tenure. Political parties the Democratic Alliance and the Congress of the People have called for Mkhwebane to be removed as Public Protector, whilst civil society organisations such as COSATU and the Organisation Undoing Tax Abuse have call for her fitness to hold office to be reviewed.^[11]

Ramaphosa report

Mkhwebane's report into the alleged improper acceptance of a R500,000 donation to the successful ANC presidential election campaign of President Cyril Ramaphosa from BOSASA has been controversial for its findings, the supposed nature of the investigation, and the political context in which it was written.^[12] The report, which concluded, inter alia, that Ramaphosa had deliberately misled parliament when questioned about the donation, was described by the President as containing "numerous factual inaccuracies of a material nature, the findings that are found are wrong in law, are irrational and in some instances, exceed the scope of the powers of the public protector."^[13][14] Ramaphosa sought a judicial review of Public Protector's report,^[14][15] the court judged that the report should be set aside^[16] and that her office had no jurisdiction to investigate the matter.^[17] The court also stated that Mkhwebane's investigation was "unlawful,” "irrational"^[18] and "reckless"^[19] whilst stating that "Mkhwebane failed to understand her jurisdiction and failed to correctly apply the law and assess the evidence before her."^[20]

South African Reserve Bank

In June 2017, with consultation from former South African Reserve Bank (SARB) director (2003-2012), Stephen Goodson, and without consultation with government economists or legal scholars, Mkhwebane drafted changes to the Constitution to nationalize and remove the independence of the SARB and the bank's mandate to keep inflation under control; she then ordered Parliament to make those changes in the Constitution.^[21] The resultant loss of confidence in South Africa's governmental bonds caused the loss of millions of rand.^[22] In August 2017 the Reserve Bank won its lawsuit against Mkhwebane and vacated her order as violative of separation of powers, which Mkhwebane appealed.^[23]

Absa Bank

In 2017 Mkhwebane issued a report, the Bankorp-CIEX report, on her investigation into among others, Absa Bank.^[21] The Pretoria High Court set aside her order for Absa Bank to refund R1.125-billion to the government for the financial assistance bailout that its predecessor Bankorp Group had received from the former government.^[24] The court found that "The public protector did not conduct herself in a manner which would be expected from a person occupying the office of the public protector," it further stated: "She did not have regard thereto that her office requires her to be objective, honest and to deal with matters according to the law and that a higher standard is expected of her."^[25]

The court also found that Mkhwebane had lied under oath and had acted in bad faith in her investigation.^[26] The court assessed some costs of the case personally against Mkhwebane due to her conduct.^[27][28] The personal costs order was later upheld by the Constitutional Court of South Africa in July 2019^[29][30][31] amounting to an estimated R900,000.^[32] The court's judgment increased public calls to have Mkhwebane removed from office.^[33]

Vrede Dairy Project

In May 2019, Mkhwebane's report into the Vrede Dairy Project was declared unconstitutional and set aside, with the Gauteng High Court finding that the Public Protector had failed in her duties to investigate the project.^[34] The Public Protector's office was ordered to pay the costs of the challenge, with some of the costs awarded against Mkhwebane personally.^[35]

Pravin Gordhan

As public protector Mkhwabane's office released a report stating that former Minister of Finance Pravin Gordhan was guilty of "violating the constitution" due to alleged improper conduct regarding the early-retirement payout of a South African Revenue Service (SARS) official.^[36] This resulted in Mkhwabane recommending that Presidency a take disciplinary action against Gordhan.^[36] Gordhan's legal counsel challenged the Mkhwanbane's finding,^[36] Mkhwabane publicly and preemptively denied that it was part of a larger political struggle to target and discredit Gordhan.^[37][38][39] In July 2019 the Gauteng Division of the High Court of South Africa ruled that Mkhwebane's recommendation against Gordhan be suspended, pending a judicial review of Mkhwabane's report on the SARS "rogue unit". The judgement stated that a number of Mkhwebane's assertions were "vague, contradictory and/or nonsensical".^[40][41]

Other judgments

A number of notable judgments against the Public Protector during Mkhwebane's tenure include the following.

On 30 July 2019 the horse racing company Phumelela Gaming and Leisure won a court interdict to prevent Mkhwabane's office from implementing remedial action in the horse racing industry whilst the public protector's report on the matter was under judicial review.^[42][43] The company argued that Mkhwebane's office violated the separation of powers, did not follow a fair process when investigating Phumelela's case and had a large number of both factual and legal material errors.^[42][43] This judgement closely following the Constitutional Court (in the ABSA Bank/SARB case) and the Gauteng High Court (regarding Pravin Gordhan) judgements against Mkhwebane's office was seen in the media as further weakening her position as public protector and adding strength to calls by the Democratic Alliance and civil society to initiate a parliamentary review into her fitness to hold office.^[44][43][42]

The High Court ruled against the Public Protector and set aside Mkhwebane's findings against individuals representing the Bapo ba Mogale community finding that methodology in compiling the report had a number of notable flaws.^[45]

Impeachment

In November 2020 National Assembly Speaker Thandi Modise appointed former Constitutional Court Judge Bess Nkabinde and senior advocates Dumisa Ntsebeza SC and Johan de Waal SC to an independent panel to consider whether there was prima facie evidence to suggest that Mkhwebane should be removed from office. The report was handed over to parliament in February 2021, and a parliamentary spokesperson summed up its findings: "the panel concluded that there is substantial information that constitutes prima facie evidence of incompetence and examples of this included the prima facie evidence demonstrating the Public Protector's overreach and the exceeding of the bounds of her powers in terms of the Constitution and the Public Protector Act as well as repeated errors of the same kind, such as incorrect interpretation of the law."^[46] On 15 March 2021 the National Assembly began an inquiry into her fitness to hold office.^[47][48] On 11 September 2023, following the completion of the process, the National Assembly voted to remove Mkhwebane,^[49] making her the first head of a Chapter 9 institution to be impeached.^[50] Her impeachment, one month prior to the end of a 7-year non-renewable term, denied her a ten million rand gratuity that she would otherwise have been entitled to.^[51]

Parliamentary career

On 16 October 2023, Mkhwebane joined the Economic Freedom Fighters party.^[52] She was sworn in as a Member of Parliament on 20 October.^[53]

References

1. "President Ramaphosa appoints Deputy Public Protector". The Presidency. Retrieved 11 March 2020. President Cyril Ramaphosa has appointed Advocate Nompilo Kholeka Gcaleka as Deputy Public Protector of the Republic of South Africa for a period of seven years effective from 1 February 2020.
2. (PDF). Parliamentary Information Centre, Parliament of the Republic of South Africa. Archived from the original (PDF) on 18 October 2016.
3. Maphumulo, Solly (9 October 2016). "God will keep me standing, says new Public Protector". IOL. Retrieved 17 February 2017.
4. "A profile of Adv Busisiwe Mkhwebane - Office of the PP - DOCUMENTS". www.politicsweb.co.za. 26 June 2019. Retrieved 29 July 2019.
5. Cameron, Jackie (31 July 2019). "HSBC joins dots from Gupta-friendly public protector to Chinese rail company kickbacks". BizNews.com. Retrieved 1 August 2019.
6. JORDAAN, NOMAHLUBI (30 July 2019). "$5,000 payment to Mkhwebane flagged by HSBC bank: report". TimesLIVE. Retrieved 1 August 2019.
7. "Mkhwebane denies Gupta financial links". SABC News. 30 July 2019. Retrieved 1 August 2019.
8. Mkhwanazi, Siyabonga (28 July 2019). "How PP Busisiwe Mkhwebane went from 'nowhere' to centre of political storm". www.iol.co.za. Retrieved 29 July 2019.
9. . Archived from the original on 19 October 2016. Retrieved 17 October 2016.
10. . Archived from the original on 19 October 2016. Retrieved 17 October 2016.
11. "Ramaphosa raises 'grave concerns' about Public Protector's grasp of the law - report". News24. 1 August 2019. Retrieved 1 August 2019.
12. Watts, Derek (29 July 2019), The People's Protector, Carte Blanche, retrieved 31 July 2019
13. "Public protector's findings were wrong and irrational, says Cyril Ramaphosa". TimesLIVE. 21 July 2019. Retrieved 31 July 2019.
14. Kekana, Mashadi (22 July 2019). "Public protector welcomes Ramaphosa's decision to place report on review". The M&G Online. Retrieved 31 July 2019.
15. FEKETHA, SIVIWE (21 July 2019). "Ramaphosa to seek judicial review of Public Protector's Bosasa report". www.iol.co.za. Retrieved 31 July 2019.
16. "High Court sets aside Mkhwebane's CR17 donation report in scathing judgment". News24. 10 March 2020. Retrieved 10 March 2020.
17. "Mkhwebane had no jurisdiction to investigate CR17 campaign donations, court rules". www.iol.co.za. Retrieved 10 March 2020.
18. "Busisiwe Mkhwebane roasted as court finds for Cyril Ramaphosa in Bosasa matter". TimesLIVE. Retrieved 10 March 2020.
19. "Mkhwebane's conduct in CR17 probe reckless, unfathomable and unlawful, court finds". News24. 10 March 2020. Retrieved 10 March 2020.
20. Nicolson, Greg (10 March 2020). "Ramaphosa vs Mkhwebane: Court sets aside Mkhwebane's 'irrational, reckless' CR17 report". Daily Maverick. Retrieved 10 March 2020.
21. de Wet, Phillip; Steyn, Lisa (21 June 2017). "The Holocaust denier, the public protector and the Reserve Bank". Mail & Guardian. Johannesburg, South Africa. from the original on 7 July 2017.
22. Herman, Paul (13 June 2018). "MPs to wait for Mkhwebane's reply before deciding on inquiry". News 24. from the original on 13 June 2018.
23. Omarjee, Lameez (15 August 2017). "SA Reserve Bank wins court bid against Public Protector". Mail & Guardian. Johannesburg, South Africa. from the original on 17 August 2017.
24. Groenewald, Yolandi (16 February 2018). "Public Protector's ABSA bailout report set aside". Mail & Guardian. Johannesburg, South Africa. from the original on 13 June 2018.
25. Feltham, Luke; Kekana, Mashadi (13 June 2018). "The case against Mkhwebane". Mail & Guardian. Johannesburg, South Africa.
26. Niselow, Tehillah (22 July 2019). "Request for Mkhwebane to be struck off advocates roll for 'lying under oath'". Fin24. Retrieved 10 August 2019.
27. Bateman, Barry (28 March 2018). "Mkhwebane loses appeal on costs order in Absa-Bankorp matter". Eye Witness News (EWN). from the original on 28 March 2018.
28. Maughan, Karyn (9 July 2018). "Busisiwe Mkhwebane still fighting R900'000 legal bill". Times Live. Johannesburg, South Africa: Tiso Blackstar Group. from the original on 9 July 2018.
29. Niselow, Tehillah (22 July 2019). "ConCourt upholds cost order against Mkhwebane, rules she was 'not honest' in Absa investigation". News24.
30. "Public protector Busisiwe Mkhwebane must pay up in Reserve Bank/Absa matter". TimesLIVE. Retrieved 29 July 2019.
31. Wyk, Pauli Van (22 July 2019). "MKHWEBANE JUDGMENT: Bad faith, dishonest, biased, reprehensible behaviour, not up to standard, falsehoods — the storm that broke over Mkhwebane". Daily Maverick. Retrieved 29 July 2019.
32. "3 times the courts set aside #PublicProtector Busisiwe Mkhwebane's reports". www.iol.co.za. 23 July 2019. Retrieved 29 July 2019.
33. "The legal argument for removing the Public Protector". News24. 26 July 2019. Retrieved 29 July 2019.
34. Seleka, Ntwaagae; Chabalala, Jeanette (20 May 2019). "Vrede dairy farm project: Gauteng High Court rules Public Protector's report is unconstitutional". News24.
35. Chabalala, Jeanette (15 August 2019). "Vrede dairy farm project: Public Protector's office and Mkhwebane will have to pay costs". News24.
36. Nkanjeni, Unathi (27 May 2019). "Pravin Gordhan vs Busisiwe Mkhwebane: what you need to know". TimesLIVE. Retrieved 29 July 2019.
37. Lowman, Stuart (5 June 2019). "Trying to pin Gordhan, Mkhwebane sets her sights on four further complaints". BizNews.com. Retrieved 29 July 2019.
38. Manyathela, Clement. "Mkhwebane pre-empts 'backlash' as she issues Gordhan with notice". ewn.co.za. Retrieved 29 July 2019.
39. "Busisiwe Mkhwebane takes aim at Pravin Gordhan in four telling quotes". SowetanLIVE & Sunday World. Retrieved 29 July 2019.
40. "Full judgment: Why the court ruled in Gordhan's favour". Fin24. 29 July 2019. Retrieved 29 July 2019.
41. "Court rules in Pravin Gordhan's favour against Busisiwe Mkhwebane". TimesLIVE. Retrieved 29 July 2019.
42. Nicolson, Greg (30 July 2019). "WHAT ARE THE ODDS?: Horse racing industry wins interdict against Mkhwebane as it pushes to overturn 'biased' report". Daily Maverick. Retrieved 31 July 2019.
43. Lowman, Stuart (29 July 2019). "House of cards: Horse racing challenges Public Protector's legal competence". BizNews.com. Retrieved 31 July 2019.
44. "Phumelela Interdict Victory". Sporting Post. 31 July 2019. Retrieved 31 July 2019.
45. Davis, Rebecca (2 August 2019). "ANALYSIS: Inside the latest findings of Public Protector Busisiwe Mkhwebane to be set aside by the courts". Daily Maverick. Retrieved 12 August 2019.
46. Sibanda, Omphemetse S (2 March 2021). "It's high noon for Busisiwe Mkhwebane, but don't be surprised if she survives". Daily Maverick. Retrieved 17 March 2021.
47. "Busisiwe Mkhwebane: first round goes to Ramaphosa". BusinessDay. 16 March 2021. Retrieved 17 March 2021.
48. Gerber, Jan (16 March 2021). "Mkhwebane is the first Chapter 9 head to face impeachment, after National Assembly vote". Retrieved 17 March 2021.
49. Ndenze, Babalo. "Busisiwe Mkhwebane removed as Public Protector after impeachment vote". ewn.co.za. Retrieved 12 September 2023.
50. Gerber, Jan; Maughan, Karyn (11 September 2023). "Mkhwebane becomes first Public Protector to be removed". News24.
51. Vecchiatto, Paul (12 September 2023). "National Assembly agrees to dismiss Busisiwe Mkhwebane". Bloomberg.
52. Lebuso, Sthembiso. "Mkhwebane joins the EFF to 'continue protecting the poor'". City Press. Retrieved 20 October 2023.
53. "In Pictures The EFF welcomes its newly sworn-in Member of Parliament, former Public Protector Fighter @AdvBMkhwebane. -Advocate Mkhwebane boasts a rich history in civil service, including key roles as a Senior Researcher for the SAHRC, Senior Investigator in the Office of the Public Protector, and Director in the Department of Home Affairs. #EFFInParliament". X (formerly Twitter). Retrieved 20 October 2023.

Preceded by Thuli Madonsela

Public Protector 2016–2023

Succeeded by Kholeka Gcaleka (acting)