Mkhwebane’s ‘conflict of interest’ scuppers appointment of deputy public protector

Parliament has decided not to proceed with the appointment of the deputy public protector. File Picture

Parliament has decided not to proceed with the appointment of the deputy public protector. File Picture

Published Apr 2, 2024


The portfolio committee on justice and correctional services has halted its process to select the next Deputy Public Protector after a legal opinion found that Economic Freedom Fighters (EFF) member Busisiwe Mkhwebane failed to declare a conflict of interest with two of the candidates.

The committee was expected to select the next deputy public protector when Parliament’s legal adviser Zingisa Zenani tabled the findings of her report into Mkhwebane’s conflict of interest.

Members of the committee said Mkhwebane should have declared upfront her relationship with the two candidates.

Zenani said Mkhwebane failed to declare that one candidate, Shadrack Tebeile, was representing her in the impeachment case in an African court.

Mkhwebane has challenged her removal as public protector in the African Court on Human and People’s Rights. Tebeile is representing her on a pro bono basis.

Mkhwebane was also found to have failed to declare that she had fired executive manager in the office of the public protector, Ponatshego Mogaladi, when she was public protector.

Mogaladi challenged her dismissal in the Labour Court and Mkhwebane was forced to reinstate her.

But Mkhwebane dismissed the finding of the report by Parliament’s legal adviser.

The committee was meeting on Monday to decide on the successful candidate after it interviewed seven candidates for the job.

Portfolio committee chairperson, Gratitude Magwanishe said since most of the parties accepted the findings of the report against Mkhwebane, they must call off the process and Parliament will have to start the process again.

He said this was also to protect Parliament from being taken to court over the matter.

There are many decisions that have been challenged in court and they did not want this process to be tainted.

“We agree we will have a report to the House indicating that the process will start from scratch. In the report to the House, we must indicate what led to the process to start from the beginning because it’s important for issues of transparency and accountability.

“Parliament has already spent money. We need to account in detail why we would not finish the process because failure to do that might amount to fruitless and wasteful expenditure. It would be incorrect to say because there were no declaration forms and, therefore, a person who has an obligation to declare can use that as a defence. In fact, in many of the committees I have served in, including the Judicial Service Commission (JSC), there are no declaration forms for people to declare, but it is expected that if there is a need for you to declare, you make that declaration,” said Magwanishe.

He said they must submit a detailed report to Parliament and explain what happened. Stopping this process was to avoid litigation in court. Magwanishe said they have faced similar situations in the JSC where some of the decisions have been taken to court by members of civil society.

This process would not only have been challenged by any party in court, but members of civil society. They did not want to have a tainted process. It would be up to Parliament to get the process started from scratch.

In her report, Zenani said Mkhwebane had to recuse herself from the process because of the relationship with Tebeile and Mogaladi.

“The facts that emerged in so far as the two candidates are concerned are that advocate Tebeile is representing Mkhwebane on a pro bono basis. We understand from the brief that it is a matter that is currently under way before the African Court on Human and People’s Rights, and it is Tebeile who approached Mkhwebane to offer his services pro bono. This matter relates to Mkhwebane’s impeachment proceedings, which she continues to challenge in various courts.

“In so far as Mogaladi is concerned, she is the executive manager in the office of the public protector. She was charged and found guilty of misconduct during Mkhwebane’s tenure as public protector. A sanction of suspension and docking of salary for a period of three months was recommended by the chairperson. Notwithstanding the recommended sanctions, Mkhwebane wrote to Mogaladi informing her she was imposing a sanction of dismissal with immediate effect subject to the filing of representations,” said Zenani.

She added that Mogaladi then challenged her dismissal in the Labour Court and the court ruled in her favour. Mkhwebane was forced to he reinstate her in the office of the public protector.

But Mkhwebane dismissed the report of the legal adviser and said it was baseless.

She said the report lacked facts and substance.

“The legal opinion the legal adviser has decided on is not well researched and very much biased,” said Mkhwebane.

The committee decided that it will table the report in the House that the process must started again.

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