Mkhwebane 'shocked, disturbed' at criticism of Zille report

Public Protector Busisiwe Mkhwebane says she was "shocked" and "disturbed" at the criticism of her most recent report into Western Cape Premier Helen Zille's tweets about colonialism.

Mkhwebane's report into Zille's infamous tweets drew criticism from some quarters of the legal fraternity after its release on Monday.

The report found that Zille's tweet, which stated that not all aspects of colonialism's legacy were negative, was in violation of the Constitution and the executive ethics code.

Legal expert Pierre de Vos wrote on his blog Constitutionally Speaking that the Constitution does not give the Public Protector the power to investigate breaches of provisions of the Bill of Rights.

READ: Did the Public Protector misapply the law on Zille's tweets?

Mkhwebane, however, disagreed on Wednesday and smiled when the question was put to her by journalists.

"It's very disturbing, coming from a professor (De Vos). I was very shocked, because the Public Protector is the only institution that has the mandate to investigate under the Executive Members' Ethics Act (EMEA)," Mkhwebane told journalists in Parliament after a portfolio committee meeting.

"Executives should conduct themselves with integrity, and the focus [of the probe] was purely on that, after a complaint was laid by a member of the Western Cape legislature."

'I'm shocked'

In terms of EMEA, when a complaint is laid, she is obliged to investigate, she said.

People had "forgotten" that the Mpumalanga High Court once found against former Mpumalanga premier Ndaweni Mahlangu when he said "it was acceptable for politicians to lie", she said.

"That premier was [eventually] dismissed, based on the same thing (his utterances).

"It's interesting to find this very issue now being deliberated on. I acted within the Constitution," she declared.

One of the findings in that judgment was that Parliament should speed up the passing of the Executive Members' Ethics Act, she added.

"So I'm shocked, that's what I'm saying; that a constitutional professor could write an article and even comment like that."

'I'm showing my independence'

Mkhwebane responded in the affirmative when asked if she felt she was being unfairly criticised, especially over her failed ABSA/CIEX report, which was set aside by the High Court in February.

"Yes, there was a lot of criticism [on that report], as if I don't know my responsibilities, or I was acting beyond the Constitution.

"I'm applying the Constitution as is," she claimed. "I'm also showing my independence and the issue of doing my work without fear or favour irrespective of who is being accused.

"That perception that you cannot find against a certain, or other class, I don't think we need to be encouraging that as a country."

Everyone should respect the law, and anyone will be investigated if a complaint is laid against them, she said.

MPs meanwhile said they would wait for a reply from Mkhwebane before deciding on whether to green-light a request to hold an inquiry into her fitness to hold office.

Inquiry decision delayed

MPs heard a motivation from DA chief whip John Steenhuisen on Wednesday on the matter, after a letter he wrote to National Assembly Speaker Baleka Mbete was referred to the committee.

Steenhuisen told the committee that Parliament had a right to review the head of any chapter nine institution if prima facie grounds could be established for one of three reasons: gross misconduct, incapacity or incompetence.

He chose to focus on the area of "incompetence", highlighting high-profile court judgments against her in her ABSA/CIEX report, which found she acted "irrationally", "unconstitutionally", "with bias" and outside her mandate.

The committee will write to Mkhwebane asking her to reply to Steenhuisen's submissions.

"We will wait until we have heard from her," committee chairperson Mathole Motshekga said.

Parliament goes into recess at the end of the week, and will only resume mid-August.

The committee, however, does have the power to move its programme forward, if it so wishes.