There is no legislation that expressly allows for the continuation of the impeachment inquiry into suspended public protector Busisiwe Mkhwebane after the expiry of her term of office in October.
And even if even if there were, it is unclear whether she would lose a once-off gratuity payment — believed to be worth millions — she is due when she leaves office.
The constitution says the public protector may be “removed from office” on the grounds of misconduct, incapacity or incompetence. Unlike judges, who are appointed “for life”, the implication of “removed from office” is that once a public protector is no longer in office, he or she cannot be removed. This is so even if there was an ongoing process that could have led to removal, and even if the conduct being investigated happened long before his or her term of office expired.
But the result of this seems perverse. It means that a rogue public protector has every reason to delay and frustrate the finalisation of an impeachment inquiry. If they succeed in delaying it until their term of office expires, they will never have to account for allegations of misconduct, incapacity or incompetence. They will walk away with their full gratuity. It would mean a monumental waste of money and time for parliament. It encourages “Stalingrad” litigation — approaches to court whose only intention is to delay and frustrate.
It is undesirable that the inquiry be cut short simply because her term of office ends — she should be vindicated or impeached
Those public protectors who should not be impeached — who have a good defence to allegations against them — will subject themselves in good faith to an impeachment process. Yet if they have ruffled the political feathers of those in high office, they may still be impeached since it ultimately comes down to a vote in parliament, albeit requiring a two-thirds majority. But those who act in bad faith could be more likely to walk away scot-free.
It’s almost as though the process achieves the opposite of its purpose — to protect the independence of the office of the public protector. It is also unfair to a public protector where delays not of their making could mean a perpetual cloud over their head.
The question of whether there could be a lawful basis to extend an impeachment inquiry beyond the end of a public protector’s term of office has not been considered by our courts. But the role-payers involved in Mkhwebane’s case seem to be working on the assumption that there is none.
Whether Mkhwebane is a rogue public protector or, as she portrays herself, a victim of “powerful forces” hell-bent on destroying her, it is undesirable — for her and for South Africa — that the inquiry should be cut short with no result simply because her term of office ends. She should be vindicated or impeached.
The inquiry has been ongoing for 11 months and has been beset with delays and ballooning costs. Now the impeachment committee has decided on a new way forward so that it can finish before October.
Chair Qubudile Dyantyi said directives would be issued for written questions to be presented to Mkhwebane and for her to respond to them and make further submissions in writing. The committee would make its final report with or without her further input; the choice would be hers.
This process may not be ideal, but it would allow the inquiry to complete its work and it gives her ample opportunity to put her side across. However, she immediately objected to it.
There is also the new allegation from Mkhwebane that the inquiry is “irretrievably and incurably tainted” because of the alleged corrupt actions of Dyantyi, ANC chief whip Pemmy Majodina and the late MP and former minister Tina Joemat-Pettersson.
On Tuesday, Mkhwebane publicly released WhatsApp messages and clips of sound recordings she said were between Joemat-Petterson and her husband, David Skosana, in March and April, allegedly revealing that Joemat-Pettersson was soliciting a bribe on behalf of herself, Majodina and Dyantyi to sway the outcome of the inquiry.
“Any person who still believes that all this evidence could have been dreamt up or manufactured by me or my husband needs their head to be examined,” she said.
Mkhwebane had already sought the “voluntary” recusal of Dyantyi as chair on these grounds. He said he would consider an application for his recusal, but none was made.
Though she did not say so on Tuesday, it is possible that she may resort to court. The committee has said in the past when she threatened litigation that it would press ahead unless there was an interdict in place.
She could seek an interim interdict to prevent the committee from proceeding pending the outcome of investigations into the bribery allegation by the parliamentary ethics committee and the police. Or she could seek an order that Dyantyi be removed.
These were the two options she presaged in her media statement on Tuesday, calling on “all South Africans to rise in one voice and join me in demanding that Mr Dyantyi be removed from chairing the section 194 committee, pending the outcomes of criminal and parliamentary investigations or that the section 194 committee be terminated with immediate effect”.
An interim interdict would require her to establish a prima facie violation of her rights. Dyantyi and Majodina have emphatically denied that they have attempted to solicit any bribe from Mkhwebane. Matters are complicated by the untimely death of Joemat-Pettersson, who could have provided all the answers.
Without Joemat-Pettersson's evidence, much would depend on what can be proved from the WhatsApp messages and the content of the full recordings, still unreleased; and what evidence there is to corroborate them.
A court order that Dyantyi be removed as chair would not necessarily prevent the committee from proceeding. He could simply be replaced as the chair and another member appointed. But with the clock ticking and October fast approaching, an interim interdict that halted the inquiry would likely be final in effect.
Then there is the question of her gratuity. The public protector’s office said this week that in terms of her conditions of service she would receive a gratuity “on vacation of office” — calculated according to a formula based on her salary at the time of departure and the number of years she has served.
It appears this gratuity is not dependent on the circumstances under which she leaves. A follow-up question on whether an impeached public protector would be entitled to the gratuity was unanswered at the time of publication. But this interpretation is supported by the fact that, under the constitution, when a president is impeached there is a specific provision that he or she may not receive any benefits of that office. Yet there is no equivalent when it comes to the public protector.
The public protector’s office did not answer a question on the exact amount of the gratuity in Mkhwebane’s case, but on a calculation using the formula provided by the public protector’s office and her gazetted salary for 2022, her gratuity would be about R9.55m.
Whatever happens with Mkhwebane, parliament may want to revisit the public protector’s conditions of service and clarify whether the gratuity is to be paid no matter the circumstances of a public protector’s departure. The rules for impeachment inquiries also might be tightened to ensure a speedier, though still fair, process.
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