Johannesburg, Friday, 10 June 2022: The South African Communist Party (SACP) welcomes the suspension of the Public Protector Adv. Busisiwe Mkhwebane by President Cyril Ramaphosa with immediate effect in terms of Section 194(3) (a) of the Constitution, which provides that the President may suspend the Public Protector, or any member of a Chapter 9 institution, “at any time after the start of proceedings by a committee of the National Assembly for (their) removal” from office.

Mkhwebane should have long resigned from being a Public Protector, actually.

July 2022 will mark three years since the Constitutional Court, on 22 July 2019, delivered a judgment to which the SACP responded by reiterating its call on Parliament to institute an inquiry into the fitness of Mkhwebane to hold office. Why did we take this stance?

In the judgment, the Constitutional Court ruled that Mkhwebane's entire model of investigation was flawed and that she was not honest about her engagements during the investigation that led to her report which was brought before the court for review. The Constitutional Court found that Mkhwebane failed to engage with the parties directly affected by her new remedial action before she published her final report. South Africa cannot afford to have an individual who has been found by the apex court of the land to be dishonest to serve as a Public Protector. Being a Public Protector and being a dishonest person do not go together. The two are the diametrical opposites and irreconcilably incompatible with each other.

In addition, the Constitutional Court found “that the Public Protector’s explanation for why she discussed the vulnerability of the Reserve Bank with the State Security Agency was unintelligible”. We recall this also in the context of the testimonies presented to the Commission of Inquiry by the Inspector-General of Intelligence Dr Setlhomamaru Dintwe, the High-Level Review Panel on the country’s intelligence services led Dr Sydney Mufamadi, and other witnesses, as well as whistle-blowers, regarding how the State Security Agency was abused, repurposed and looted, with billions of rands stolen or disappearing from its funds, all in pursuit of partisan and factional agendas.  

Besides, in its judgment the Constitutional Court found that Mkhwebane put forward “a number of falsehoods in the course of litigation”, including under-oath-misrepresentation of certain facts that underpinned her investigation. Being a Public Protector and a liar, like being a Public Protector and a dishonest person, do not go together but are contradictory and irreconcilably incompatible. The Constitutional Court also found that Mkhwebane acted in bad faith, which is still a serious compatibility problem.

The 22 July 2019 Constitutional Court judgment was not the first to expose the problems how the manner in which Mkhwebane conducts her investigations as well as her conduct leave much to be desired. There were other court judgments before and she failed to learn, continuing to carry investigations in a legally flawed manner with other problems. This resulted in more judgments, including personal cost order against her.