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Advocate Busisiwe Mkhwebane Public Protector in the Public’S Perception? Report on the Public Protector’S First 100 Days in Office

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ADVOCATE BUSISIWE MKHWEBANE PUBLIC PROTECTOR IN THE Public’s PERCEPTION? Report on the Public Protector’s first 100 days in office 17/10/2016 - 24/01/2017 COMPILED BY AFRIFORUM Report on the Public Protector’s first 100 days in office Report TABLE OF CONTENTS PAGE Introduction 4 Legal basis 5 CV Adv. Busisiwe Mkhwebane 6 Objections by Opposition & Appointment 8 Media Statements & Reports – Timeline 8 Conclusion 13 3 Report Report on the Public Protector’s first 100 days in office INTRODUCTION The office of the Public Protector (PP) was created by the President would eventually approve the appointment. Constitution of the Republic of South Africa 1996 as one of the instruments to create checks and balances and limit From a shortlist of 14 candidates, which included Judge the power of Parliament and the Government. The PP and Sharise Weiner, Judge Sirajudien Desai, Adv. Kevin Malunga, other Chapter 9 institutions were heavily debated during Adv. Nonkosi Cetywayo, Adv. Mhlaliseni Mthembu, Adv. the discussions around the adoption of the Constitution. Madibeng Mokoditwa, Adv. Mamiki Goodman, Prof. Narnia Their eventual inclusion in the Constitution was therefore a Bohler-Muller, Prof Bongani Majola, Ms Jill Oliphant, Ms victory for the South African people, although the first public Muvhango Lukhaimane, Ms Kaajal Ramjathan-Keogh, and protectors were relatively unknown and they were often Mr Willie Hofmeyr, Ms Busisiwe Mkhwebane eventually criticised for not performing their constitutional duties. emerged victorious, if one can call it that, and was appointed as the new Public Protector. With Thuli Madonsela transforming the office of the Public Protector from a rather unknown and almost insignificant This report aims to evaluate the new Public Protector’s state institution to virtual rock star status in South Africa first 100 days in office, starting from her first day at the through her handling of the Nkandla case and her state office on 17 October 2016. To provide ample background capture report, the end of her tenure in 2016 left some large on the (new) PP, this report starts with a legal background shoes for her successor to fill. and her CV, followed by the objections raised by the Democratic Alliance during the selection process, and The process to determine who the next PP would be started her eventual appointment. The report then provides a on 24 May 2016, when the National Assembly appointed timeline-based overview of media statements by the an ad hoc committee to oversee the appointment process. office of the PP and media reports by independent media The committee was to scrutinise the nominations, shortlist outlets in order to provide insight into Adv. Busisiwe the candidates and interview those on the list in order to Mkhwebane’s actions during the period between 17 October eventually present their choice of candidate to Parliament. If 2016 and 24 January 2017, and the perception she has Parliament then endorsed the recommended candidate, the thereby created of herself. 4 Report on the Public Protector’s first 100 days in office Report LEGAL BASIS Powers and Functions further details regarding the establishment and appointment Section 181(1)(a) of Chapter 9 of the Constitution of the of the PP are outlined in the Public Protector Act 1994 (Act Republic of South Africa 1996 (the Constitution) makes No. 23 of 1994) (the Act), as amended by the Public Service provision for the establishment of the Public Protector (PP) Laws Amendment Act 1997 (Act No. 47 of 1997); the as a state institution in order to ‘strengthen constitutional Public Protector Amendment Act (Act No. 113 of 1998); the democracy in the Republic’. Subsection 2 of section 181 Promotion of Access to Information Act (Act No. 2 of 2000); further dictates that the PP is independent and subject only the Public Protector Amendment Act (Act No. 22 of 2003); to the Constitution and the law, that the office must be the Prevention and Combating of Corrupt Activities Act (Act impartial and that it must exercise its powers and perform No. 12 of 2004); and the Determination of Remuneration its duties without fear, favour or prejudice. Subsection 3 of of Office-bearers of Independent Constitutional Laws section 181 states that other organs of state are to assist Amendment Act (Act No. 22 of 2014). and protect the PP through legislative and other measures in order to ensure its independence, impartiality, dignity and Section 1A of the Act deals with the establishment and effectiveness. Finally, subsections 4 and 5 of section 181 appointment of the PP and reads as follows: stipulate that no person or organ of state may interfere with (1) There shall be a Public Protector for the Republic. the work of the PP and that the PP is accountable solely to the National Assembly, to whom he or she must report on (2) The President shall, whenever it becomes activities and performance at least once every year. necessary, appoint a Public Protector in accordance with the provisions of section 193 of the With regard to the PP’s own functions and powers, section Constitution. 182(1) of the Constitution confers the following powers on the PP; namely to (3) The Public Protector shall be a South African citizen who is a fit and proper person to hold such (a) investigate any conduct in state affairs, or in the office, and who- public administration in any sphere of government, that is alleged or suspected to be improper or to (a) is a Judge of a High Court; or result in any impropriety or prejudice; (b) is admitted as an advocate or an attorney and (b) to report on that conduct; and has, for a cumulative period of at least 10 years after having been so admitted, practised as an advocate (c) to take appropriate remedial action. or an attorney; or These powers are explained and complemented, as per (c) is qualified to be admitted as an advocate or an section 182(2) of the Constitution, by additional powers attorney and has, for a cumulative period of at least and functions as determined by national legislation such as 10 years after having so qualified, lectured in law at sections 7 and 7A of the Public Protector Act 1994 (Act No. a university; or 23 of 1994). However, section 182(3) provides that the PP may not investigate court decisions. Subsections (4) and (d) has specialised knowledge of or experience, (5) of section 182 of the Constitution state that, in order for a cumulative period of at least 10 years, in the to perform its functions, the PP must be accessible to all administration of justice, public administration or persons and communities and that any report issued by public finance; or the office must be open to the public, unless exceptional circumstances, to be determined by national legislation, (e) has, for a cumulative period of at least 10 years, require the confidentiality of a specific report. been a member of Parliament; or Tenure and appointment (f) has acquired any combination of experience Whereas the Constitution determines in section 183 that the mentioned in paragraphs (b) to (e), for a cumulative PP is appointed for a non-renewable period of seven years, period of at least 10 years. further details regarding the establishment and appointment Whereas the Constitution determines in section 183 that the (4) The Public Protector shall not perform PP is appointed for a non-renewable period of seven years, remunerative work outside his or her official duties. 5 Report Report on the Public Protector’s first 100 days in office CV ADV. BUSISIWE MKHWEBANE Nationality: African, gender: Female Education University of South Africa School of Business Leadership 2010 Course work completed for master’s degree in Business Leadership (MBL) 2014 Research in progress Rand Afrikaans University (RAU) 1997 Qualification obtained: Diploma in Corporate Law (Company Law, Close Corporations) Rand Afrikaans University (RAU) 2002 Higher Diploma in Tax Law University of the North 1992 Qualification obtained: B.PROC University of the North 1994 LLB Mkhepula Secondary School 1992 Qualification obtained: National Senior Certificate (Matric) Professional experience immigration services within PRC; liaised with stakeholders within the mission and in PRC; identified immigration trends 02/07/2014 – Present Department of Home Affairs and patterns that pose a risk to South Africa and maximised Branch: National Immigration Services economic benefits to the RSA; was awarded merit award for Position: Director: Country Information and Cooperation performing management and adjudication tasks; facilitated Management establishment of visa facilitation office (outsourced office); Key performance areas: Provided strategic direction and was awarded a merit award for exceptional performance in leadership to the Directorate; developed and managed a 2012. framework to conduct research into the political, social, economic and cultural situation of countries from which 01/06/2005 – 01/09/2009 Department of Home Affairs persons who claim asylum in South Africa originate in order Branch: National Immigration Services to support the adjudication of asylum claims; identified Position: Director: Refugee Affairs sources of information and developed and formalised a 01/10/2009 – 31/03/2010 Department of Home Affairs framework of engagement with critical government and Branch: National Immigration Services civil society stakeholders for the sourcing and provision of Position: Acting Chief Director Asylum Seekers information; established, managed and updated a country- Management (ASM) of-origin information database; prepared and managed the Key performance areas: Managed asylum seekers Directorate’s budget; ensured compliance with human management centres in four provinces: Gauteng, KwaZulu- resources policies and prescripts; identified and managed Natal (Durban), Eastern Cape (Port Elizabeth), and Western risks within the directorate. Cape (Cape Town), and provided refugee services leadership 27/04/2010 – 01/07/2014 South African Embassy in the and strategic direction within immigration branch and Republic of China (PRC) centres in accordance with the Refugee Act, 1998.
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