The inappropriate DA challenge of the Public Protector

The ATM has been following with shock and disgust media utterances attributed to the DA on the removal of Advocate Mkhwebane.

The call by the DA exposes it’s wanting understanding of the Constitution, and also confirms its long harboured vindictiveness in opposing Mkhwebane’s appointment from the very beginning.

The Constitution provides that a Public Protector can be removed by a two-thirds Parliamentary majority, on grounds of misconduct, incapacity or incompetence. No competent authority has pronounced on any of the grounds at this time.

Mkhwebane has been very hard at work since she took office and has resolved numerous matters impacting vulnerable people who cannot afford legal representation.

In the twelve months ended 31 March 2019, she finalised nearly 10 000 reports on some 14 000 complaints. This is in addition to around 50 000 matters she has been working on since taking office in October 2016. Some 70% of relevant reports are being finalised.

Only a handful of some 100 formal reports already released are being challenged, and fewer still set aside by courts. Reports so set aside are on appeal, and therefor in abeyance, making it irrational and premature for the DA to be citing such incidents in its attack on the PP.

Reports finally set aside will only indicate that the PP is prepared to expose all possible, if not probable malfeasance, nonfeasance, and misfeasance, and her preparedness to be subject to court challenges – all for the public good and in service of good governance. A number of court dismissals can never justify removal, and do not indicate even alleged incompetence, as the PP’s batting average will remain high, and her commitment will remain beyond suspicion, by the very fact that she is prepared to take a stance in the face of possible challenge.

The DA needs to learn to act honestly and in good faith, and to familiarise itself with, and to objectively judge the PP’s performance by, the entire scope of the key performance areas and key performance indicators defining the PP’s mandate.

As lower court judges are not dismissed for being reversed by higher courts, it is absurd to attempt to abuse the review mechanism for political expediency.

The ATM is calling on all South Africans to support Advocate Mkhwebane in her sterling work as she executes her mandate without fear or favour.

The irrationality and vindictiveness of the DA is further exposed by their inconsistent responses to comparable acts by the previous public protector, Advocate Madonsela. In the Estina dairy farm matter, for instance, Madonsela instructed the SIU to investigate maladministration when she didn’t have the power to do so in terms of the PP Act. She was only allowed to refer the matter. The DA never rose to complain about this over-reaching.

The DA’s prejudice is also exhibited by its insistence that the PP pronounce on the President Ramaphosa – Bosasa matter, while at the same time questioning Mkhwebane’s competence to make findings!

The call by the DA to remove Adv Mkhwebane must be seen as interference and a violation of s. 181 (4) of the Constitution which states that “No person or organ of state may interfere with the functioning of [the Public Protector]”.

Parliament is called upon to observe and exercise s. 181 (3) of the Constitution which states that “Organs of the state must assist and protect [the Public Protector] to ensure [her] independence, impartiality, dignity and effectiveness.

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