Public protector Busisiwe Mkhwebane says it is unfair that she is facing possible impeachment for mistakes she might have made in her job while judges who get it wrong have an opportunity for their mistakes to be fixed by appeal courts.
Mkhwebane was addressing the section 194 committee inquiring into her fitness to hold office on Thursday.
Most of the complaints of misconduct and incompetence against Mkhwebane, contained in a motion for her removal by DA MP Natasha Mazzone, were supported by number of court judgments setting aside some of her reports.
Mkhwebane spent Thursday addressing the committee on the report on the establishment and existence of the so-called “rogue unit” at Sars and quoted extensively from her own report, showing the route she took to come to her conclusions.
In the judgment setting aside that report in December 2020, the full bench of the Pretoria high court said Mkhwebane showed bias as she did not have jurisdiction to probe events at Sars dating back to 2009.
The judges said her decision to conduct the investigation was unlawful because there were no special circumstances present.
“The review should succeed in its entirety on this ground alone. However, if we are wrong in this regard and the public protector had the necessary jurisdiction to investigate the complaints, we will nonetheless consider the review,” the full bench said.
This led Mkhwebane’s advocate, Dali Mpofu SC, to remark that the judges said they might be getting the law wrong, but in the same breadth said if Mkhwebane was getting the law wrong, she was biased. Mpofu said this related to the issue of dealing with the relationship between protecting the independence of the public protector and the independence of the courts.
“What I am asking you is how do you feel by being judged by a different standard, when you get it wrong it is impeachable but where a judge gets it wrong, an appeal court might fix it, but they go back to work the following day,” Mpofu asked.
Mkhwebane said on the face of it, it was “very much unfair”.
Mkhwebane said she had shown in some of the judgments the issue of magnifying the mistakes of the public protector.
“Judges they do falter. They have an opportunity for their judgments to be considered at a higher court. When they have lost those cases, no-one will come and hold this particular process.
“With me they are holding this particular process. Unfortunately, the way the Mazzone motion was crafted and those charges, it relates a lot to the judgments and the language they have used there against me.”
She said judges might have made a mistake but they went and found against her, stating she was biased.
“When you consider these judgments, hear me out, I was doing this work, but again, I am also not perfect. Do I have to receive such harsh treatment, such humiliation, I don’t know.”
She disputed the finding by the court that she did not have jurisdiction to probe events at Sars dating back to 2009, when an “intelligence unit” was established at the time current public enterprises minister Pravin Gordhan was commissioner at Sars.
Section 6(9) of the Public Protector Act provides that except where the public protector — in special circumstances, within her discretion — permits, a complaint referred to the office shall not be entertained unless reported to the public protector within two years from the occurrence of the incident.
She said the incidents that were complained of were still ongoing when her team investigated.
TimesLIVE
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