Business bodies at odds over petition to remove Public Protector

Business bodies Business Unity South Africa (BUSA) and the SA Chamber of Commerce and Industry (SACCI) are at odds over a petition to Parliament to remove the Public Protector from office. 

On Wednesday BUSA, in a statement, said Busisiwe Mkhwebane is not “competently and fairly” upholding the Constitution and should be removed via a Parliamentary process. 

“BUSA has been driven to make this extraordinary request by the accumulation of the missteps and the unconstitutional behaviour by the current Public Protector since she took office three years ago, which has the effect of creating significant policy and institutional uncertainty at a crucial time in South Africa’s history,” said the business lobby’s president, Sipho Pityana

In a statement on Thursday, SACCI said it had read BUSA’s statement “with concern”. 

“This action by BUSA has not been canvassed with the South African Chamber of Commerce and Industry as the biggest affiliate of BUSA. Similarly as SACCI we have not obtained the mandate of our own affiliates and members to call upon the National Assembly to initiate such a significant constitutional action. To this end, SACCI respects the separation of powers as enunciated in the Constitution of the Republic of South Africa with the rule of law at its epicenter.”

SACCI is an umbrella business body bringing together different business chambers and bodies. It is a member of BUSA. 

The chamber said petitioning Parliament directly for the removal of the head of a chapter 9 institution may “lead to a constitutional crisis”.

“This is not something that should be taken lightly, and requires not only deep reflection, but wide and extensive consultations with our affiliated members and stakeholders in terms of our governance protocols as a body representing a wide range of constituencies in the South African Chamber of Commerce and Industry.”

While the Speaker cannot rule that the Public Protector be removed, she can order that a committee of Parliament be tasked with investigating Mkhwebane. According to section 194 of the Constitution, if that Parliamentary committee makes findings of “misconduct, incapacity or incompetence” against the Public Protector, she could be removed if a subsequent resolution calling for her to go is approved by over two-thirds of the members of the National Assembly.

‘They have the right to approach the courts’ 

BUSA’s petition came in the wake of Mkwebane ruling last week that Minister of Public Enterprises Pravin Gordhan, when he was minister of finance in 2010, should not have approved then-deputy SARS commissioner Ivan Pillay’s early retirement with full benefits. Pillay later returned to the same portfolio on a contractual basis.

On Tuesday, lawyers for Gordhan filed a review application asking the North Gauteng High Court to set aside the report. Gordhan, in an affidavit, accused Mkhwebane of exhibiting “stunning incompetence, irrationality and negligence” in the performance of her duties

Mkhwebane’s spokesperson Oupa Segalwe, in response, said that those who were aggrieved with Mkwebane’s findings were welcome to approach the courts. “If those found to have acted wrongly are aggrieved at the Public Protector’s findings and remedial action, they have the right to approach the courts for recourse,” he said