Mkhwebane removed from office:
The National Assembly on Monday voted 318 to 43 to remove suspended public protector Busisiwe Mkhwebane from office, just weeks before her seven-year term expires in mid-October.
The step was, as expected, opposed by the Economic Freedom Fighters (EFF), the United Democratic Movement (UDM), the Pan-Africanist Congress (PAC), African Transformation Movement (ATM) and Al Jama-ah but the resolution carried with ease thanks to the combined strength of the ANC, the Democratic Alliance and several small parties.
Qubudile Dyantyi, the ANC MP who chaired the fractious section 194 inquiry into her fitness to hold office, said it was the most scrupulously thorough investigation parliament had conducted since the advent of democracy in South Africa in 1994.
The committee found evidence that not only sustained the main charges of misconduct and incompetence against Mkhwebane, but also brought to light more missteps in the course of critical investigations.
“Ours was not an enquiry which rubber-stamped the findings of the independent panel or the courts,” Dyantyi said, referring to the high level panel that concluded in early 2021 that found there was cause for an impeachment process.
Headed by former constitutional court judge Bess Nkabinde, the panel found prima facie evidence of repeated misconduct, or at least gross negligence, on Mkwebane’s part in the court rulings overturning her reports in the most scathing terms.
These include the Pretoria high court and the constitutional court findings on her 2017 Bankorp-Absa report, the court judgments relating to her report on the Vrede dairy farm scandal and the legal review of her Financial Sector Conduct Authority report.
Dyantyi stressed that the committee “heard hundreds of hours of testimony” before resolving in a report drafted in July that the charges were sustained.
“Where we have established misconduct and incompetence, we are confident that advocate Mkhwebane did not raise any valid defence for her conduct to sway us,” he said.
“In fact, the enquiry unearthed even further examples of misconduct and incompetence that had this committee not adduced evidence in the manner that it did, would have never come to the fore.”
The committee heard startling evidence that EFF chief whip and deputy president Floyd Shivambu gave a copy of a classified report of the office of the inspector-general of intelligence (OIGI) on the South African Revenue Service (Sars) to the public protector.
Mkhwebane never admitted to having the document when her report, which concluded that now Public Enterprises Minister Pravin Gorhan had allowed a “rogue” intelligence unit to be established within the revenue service, was taken on review in the high court.
The high court found that she had allowed her office to be used “to resuscitate a long-dead fake news propaganda fiction” and that she had been dishonest about having a copy of the OIGI report but the evidence of her former colleague, Ponatshego Mogaladi, before the inquiry shed more light on what had transpired.
ANC chief whip Pemmy Majodina said Mkhwebane had eroded public confidence in a crucial chapter 9 institution in the manner in which she had mishandled high level investigations.
“The inadequacies in the Vrede investigation and the exercise of the lifeboat [Bankorp-Absa] investigation both of which caused serious harm, are such that they would have destroyed a reasonable member of the public’s confidence in her ability to discharge her duties and functions.”
In the Vrede investigation, the committee heard, Mkhwebane was deaf to repeated pleas from senior staff members to consider reports that the Gupta family had pocketed millions from the Vrede dairy farm project in her investigation into the scam.
She notably made no findings against politicians and again the report was set aside by the high court.
But members of the EFF, UDM, PAC and ATM argued on Monday that removal was Mkhwebane’s punishment for refusing to do the bidding of the ruling elite.
“If you are in public service and you don’t toe the line of the ruling party, the party will embarrass and chase you out of office,” said ATM leader Vuyo Zungula.
“Never has it happened anywhere in the world that a sitting ombudsman is removed, especially after finding against the powerful president and minister. Who is next in this brutality?
“This action is clearly set out to make independent chapter nine institutions to work in fear. It is either you rule in favour of the most powerful sections of society or you will be punished.”
UDM leader Bantu Holomisa said Mkhwebane committed the sin of doing her job too thoroughly.
He added that she had brought to light crucial information on money that flowed into the CR17 campaign for President Cyril Ramaphosa’s election as leader of the ANC, after former DA leader Mmusi Maimane laid a complaint to her office. Instead, Holomisa suggested, both Maimane and Mkhwebane were sacrificed for pursuing the truth.
The PAC’s Mzwanele Nyhontso said the Mkhwebane’s impeachment was a plain case of misogyny.
The impeachment process has taken more than two and half years since then DA chief whip Natasha Mazzone submitted a substantive motion for Mkhwebane’s removal from office in December 2020. It has, her colleague Annelie Lotriet said in the debate on Monday, cost the taxpayer some R160 million.
Freedom Front Plus MP Corné Mulder noted that roughly R36 million was spent on Mkhwebane’s legal fees and accused her lawyer, Dali Mpofu, of displaying contempt for the country’s poor majority by suggesting that the money he charged — in the order of R50 000 a day — was “peanuts”.
Voting on the committee’s report took place by roll call. When his name was called, Gordhan responded by saying “absolutely yes”.
An ad hoc committee has nominated Mkhwebane’s deputy, Kholeka Gcaleka, as the new public protector. Gcaleka is already facing one court challenge to her findings. The ATM has filed for legal review of her report absolving Ramaphosa of wrongdoing in the Phala Phala scandal.
Late last year, Sveriges Riksbank, Sweden’s central bank, published a journal article titled The Political Costs of Austerity as part of its Working Paper series.
The paper, which has appeared elsewhere, relied on a regional database covering over 200 elections in several European countries to trace the relationship between the rise in support for extreme parties during periods of fiscal consolidation. The paper’s writers define extreme parties as both far left or far right but found that the latter saw a more significant rise in voter support in the wake of austerity.
A reduction in regional public spending by 1%, they found, causes a rise in extreme parties’ vote share of around 3 percentage points. Moreover, political fragmentation increased and there was lower voter turnout. This is as austerity inflicts severe economic pain — private investment and wages fall, entrenching economic contraction, and unemployment rises.
South Africa is approaching an important election, which some say will be a watershed moment for the ANC. The governing party has imposed cycles of austerity on South Africa’s economy throughout its time in power. Now, the government is seeking to implement another round of spending cuts, just as the ANC faces down perhaps the biggest threat to its leadership — a languishing economy.
As a number of commentators have already pointed out, by tightening the public purse strings now, the ANC-led government could be committing political suicide.
At the very least, it could spell the end of President Cyril Ramaphosa’s leadership and the beginning of the end of his push for unity and renewal within the governing party. Whatever remains of the party in the fallout could be even more to the right than what we currently have to endure, though its actors will undoubtedly disguise themselves as falling on the side of the left.
For those on the outside of the ANC’s gravitational pull, there are opportunities, as well as considerable pain, in the governing party having wielded only double-edged swords (which it has brandished in only the most clumsy of ways).
In a statement last week, the Budget Justice Coalition warned of the detrimental effects of the looming spending cuts.
This is after it came to light that the treasury has instructed government departments to pare back their budgets in the lead-up to the tabling of the medium-term budget policy statement (MTBPS), now expected to happen in November.
The MTBPS and the February 2024 budget have long been viewed by analysts as especially tricky for the ANC, as the party attempts to balance the interests of the voting public and the markets, which have their own brutal voting system. The country’s meagre growth this year, as well as the fading of the commodity boom, has made budgeting even more treacherous.
The directive states that — given the lower growth projections than those contained in the February budget and the deteriorated fiscal outlook — the treasury has been left with little option but to propose stringent budget adjustments. In the meantime, the treasury has told government departments to freeze hiring, as well as the process of advertising new procurement for infrastructure projects, unless approved by the treasury.
“These measures,” the directive notes, “can be relaxed as soon as economic and fiscal conditions improve.”
The Budget Justice Coalition states that these sudden and immediate measures “only serve to widen the gap between those who are hungry and live well below the food poverty line and those who are wealthy”.
“We caution that these budget cuts will have long-term detrimental effects on the economy and the progressive realisation of socio-economic rights protected by the South African Constitution. Moreover, the measures will further impede the state’s ability to increase much-needed capacity in key areas, such as crime prevention, health, education, social development and early childhood services.”
Cosatu, the ANC’s alliance partner, also hit out at the spending cuts.
“Whilst we appreciate the real fiscal constraints facing the state and the need to cut fat and reprioritise expenditure,” the trade union federation said, “the solutions offered by treasury of slashing expenditure and further de-capacitating the state when the economy is in desperate need of stimulus and a well-oiled and capacitated public services, will only serve to choke the economy and further weaken an already enfeebled government.
Notably, the Budget Justice Coalition calls on the treasury to acknowledge austerity’s true costs and how these have been weighed against alternative options for raising additional revenue, such as increasing taxes on wealth and adjustments to corporate income tax.
As the treasury prepares for the MTBPS, the coalition notes, it has an opportunity to consider alternatives to austerity. “Furthermore, the upcoming 2024 elections should serve as a strong reminder that the public requires a government that works for, and not against, the realisation of constitutional rights — and one that stimulates the economy.”
The sad truth is that a protracted period of fiscal consolidation has already been the impetus for internal political fragmentation, a fact which has allowed those in power, as well as some of those charged with holding them to account, to lose sight of their constitutional duties. In the wake of the state’s moral deterioration, opportunists have managed to accelerate its collapse, using this predicament to grow their bellies — creating the perceived need for further budget tightening.
All the while, everyone has become a scapegoat for the country’s economic ills: civil society, labour, the poor, immigrants.
The Political Costs of Austerity imparts two lessons worth heeding. To ruling parties, in choosing to inflict fiscal consolidation, you are gambling with your own political relevance. Even if you manage not to be booted from power, the scar of political disharmony will probably never fade.
To those doing the thankless work of guarding us against the bludgeoning by unscrupulous politicians — the natural opposition to the far right — when ruling parties fall to pieces, you do not have the luxury of doing the same. For what we need now is a coherent and concerted movement against the forces that endeavour to deepen the inequalities that have kept us divided for so long.
‘Flight risk’ Nandipha Magudumana denied bail:
Celebrity doctor Nandipha Magudumana, who allegedly assisted convicted rapist and murderer Thabo Bester to escape from prison in 2022, was denied bail in the Bloemfontein magistrate’s court on Monday.
The matter was postponed to 11 October.
Magistrate Estelle de Lange ruled Magudumana to be “a definite flight risk and that no bail condition will assist under the circumstances to limit this risk”.
“I find that she did not satisfy the court that it is in the interest of justice for her to be released on bail. The application to be released on bail is refused,” De Lange said.
The court took into account the fact that Magudumana supplied false information regarding her address of residence in April when she provided one to the police that she had already vacated a month before.
It was further important to the court’s findings that Bester and Magudumana left the country in a rented vehicle, which indicated “that they intended to leave the country so that they would not be traced”, De Lange said.
Bester and Magudumana were returned to South Africa in April after being detained in Tanzania, having been on the run since Bester escaped from the Mangaung Correctional Centre in Bloemfontein in May 2022.
Magudumana’s arguments that she would suffer financial loss and would be separated from her children did not convince the court to release her on bail on Monday.
Instead, it said, all the evidence showed that Magudumana left the country “voluntarily” and “deserted her family and her business to leave with accused number five [Bester]”.
“The applicant did not present any evidence to court of the contrary, except for stating under oath in her affidavit that she was kidnapped by him. There is strong evidence by the state which is not supporting her allegation that accused number five kidnapped her.”
In handing down the judgment, De Lange said Magudumana appeared to be in “good health”.
“Whenever she appeared before me she appeared to be well groomed and in a good state of health. I’m confident that all her reasonable needs are met during the period of detention,” the magistrate said.
It is Magudumana’s third failed court application since she was arrested in Tanzania five months ago.
Her application for leave to appeal the Free State high court ruling that she had consented to return to South Africa, was dismissed with costs on 5 June after she asked the court in May to declare her arrest in Tanzania and extradition to South Africa unlawful.
She wanted the court to order that she be released from custody and to rule that the magistrates’ court does not have jurisdiction to try her. But Judge Phillip Loubser found that Magudumana had indeed been extradited without process, but that she had consented to board the chartered plane that brought her back to South Africa.
Magudumana was arrested alongside Bester and faces several charges, including fraud, aiding an escape and violating dead bodies.
Twelve people stand accused in the Bester escape saga and face a total of 16 charges. The trial is expected to be heard in the Bloemfontein high court where the state will present 18 witnesses to testify.
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