Ex-Public Protector under fire for racial slurs
Publish date: 07 October 2024
Issue Number: 1097
Diary: IBA Legalbrief Africa
Category: South Africa
Racial slurs by the impeached former Public Protector of SA following her failed court appeal have been strongly condemed by the legal fraternity, Parliament, political parties and trade unions. Busisiwe Mkhwebane, now an Economic Freedom Fighters MP, accused individuals of ‘predominantly Indian descent’ of positioning themselves as her 'persecutors’, leading to calls being made for a probe by Parliament's Ethics Committee, reports Legalbrief. Judges Matter has called for the probe on the ‘racially motivated attack on a Supreme Court of Appeal CA Justice Visvanathan Ponnan’, after he dismissed her application to appeal a 2022 Western Cape High Court ruling related to her impeachment inquiry. According to a Business Day report, Judges Matter’s Mbekezeli Benjamin said the body condemned Mkhwebane’s ‘outrageous statement in the strongest possible terms’ and called on the Speaker of the National Assembly, Thoko Didiza, to refer her comments to the Ethics Committee for further action. ‘It is particularly disappointing to see this attack on the judiciary come from an Advocate of the High Court, bound to the ethical code of the Legal Practice Council,’ Benjamin said. ‘Parliament’s Justice Committee exercises oversight over the judiciary and, as a member of that committee, Ms Mkhwebane is bound by section 165(4) of the Constitution to take measures to protect the dignity of the courts. Her comments arguably violate this provision of the Constitution,’ Benjamin added. ‘The expectation on all of us is that when we file disputes in court, we must trust the courts to resolve them fairly and not falsely accuse judges of impropriety. It is troubling that Ms Mkhwebane said nothing about the substance of the SCA’s judgment, and instead attacked Justice Nathan Ponnan on ethnic and racial grounds. Judges Matter condemns her outrageous statement in the strongest possible terms.’
Parliament also ‘dismissed with dismay’ Mkhwebane’s statements, says the Business Day report. In a statement, Parliament said Mkhwebane sought to impugn the integrity of its staff as well as the evidence leader of the Section 194 Committee that deliberated on her impeachment. ‘There is no merit to the attack levelled against these legal advisers who have served Parliament with diligence and integrity over the years,’ the statement reads. ‘The unwarranted attack on these officials, along with the racial slurs used by Advocate Mkhwebane, is particularly regrettable in a democratic society such as ours, where human dignity should be protected and respected. As an MP and a public representative who owes allegiance to our Constitution, Advocate Mkhwebane has a responsibility to uphold and protect the values enshrined in the Constitution, which are the cornerstone of our democracy,’ Parliament said. ‘Advocate Mkhwebane has appropriately sought the court’s intervention to express her dissatisfaction with the outcome of the Section 194 Committee, and the court has now struck the matter from the roll.’
Meanwhile, Democatic Alliance MP and party spokesperson on Justice & Constitutional Development Glynnis Breytenbach called Mkhwebane's remarks ‘a shameful deflection from accountability,’ accusing her of race-baiting to sidestep responsibility for her failed appeal. According to a City Press report, Breytenbach remarked that it was ‘disgraceful’ for Mkhwebane to resort to race-baiting as a means of deflecting from her failures and the overwhelming evidence that led to her removal from office.‘The judgment was unequivocal: Ms Mkhwebane’s appeal was found to be frivolous and without merit. Instead of accepting accountability, she chooses to make baseless accusations against individuals of Indian descent, attempting to cast herself as a victim rather than acknowledging the consequences of her actions.’ Breytenbach added: ‘This behaviour not only offends but reveals a profound lack of understanding of the principles of justice and accountability that should guide our democratic institutions.’ ‘Let us be clear, her desperate attempts to invoke race will fail, just as her tenure in office did. SA deserves better leadership and we are committed to ensuring that our institutions are held to the highest standards of accountability.’
The Congress of South African Trade Unions (Cosatu) also condemned Mkhwebane's ‘shameful utterances and attacks on South Africans of Indian descent’, says a News24 report. ‘It is unacceptable for an MP to indulge herself in what amounts to hate speech against any section of SA's population, including compatriots of Indian origin,’ said Cosatu parliamentary co-ordinator Matthew Parks. ‘Parliament, of which she is a member, passed the Prevention and Combating of Hate Speech & Hate Crimes Act, precisely to deal with malcontents who have no sense of self introspection or filter. While it is easy to dismiss rantings on social media, SA cannot afford to condone or normalise hate speech. Citizens have the right to expect better from our elected public representatives, more so when workers are paying their salaries to hold government accountable, grow the economy and improve the lives of the masses; not to divide society along racial lines.’
Despite the criticisms, Mkhwebane has defended herself against racism allegations raised by Parliament, asserting that her comments were aimed at broader systemic issues. According to a report in The Star, Mkhwebane commented: ‘First, I want to clarify that I am neither racist nor tribalistic. My concerns arise from observing current trends and feeling unjustly targeted by certain narratives. It was never my intention to undermine the integrity and dedication of Parliament’s staff members, especially the legal advisers mentioned. I respect and acknowledge their hard work and unwavering commitment to their roles. My comments were directed at understanding broader systemic issues, not personal attacks. I am committed to promoting constructive dialogue,’ she said.
Giving the background to the story, a Daily Maverick report notes Mkhwebane had attempted to appeal a Western Cape High Court decision dismissing her application to remove the chair of the historic Section 194 impeachment inquiry into her fitness to hold office. On social media, Mkhwebane claimed she had been ‘disappointed’ by the ruling by Ponnan on behalf of a full Bench, who struck the matter from the roll, stating that ‘political posturing’ did not belong in the country’s courts. Fellow judges included Justices Caroline Nicholls, Billy Mothle and Acting Justices Mokgere Masipa and Evette Dippenaar. Mkhwebane soon hit back, attacking the judiciary and the SCA, saying that Ponnan ‘leading the judgment, displayed noticeable arrogance and dismissiveness throughout the proceedings’. She continued that her ‘ongoing struggle’ had involved ‘key figures, predominantly of Indian descent, who have positioned themselves as my persecutors’. She named these individuals as including the late Pravin Gordhan, Section 194 evidence leader, Advocate Nazreen Bawa SC, Parliament’s chief legal adviser, Zuraya Adhikarie, ‘so-called expert witness’ Hassan Ibrahim, witness Ivan Pillay and parliamentary legal adviser Fatima Ebrahim. ‘Judge Ponnan’s attitude further underscores the challenges and biases I have faced in my quest for justice.’ The DM report notes Mkhwebane failed to mention Advocate Ncumisa Mayosi, who formed part of the team but does not seem to fit into the EFF MP’s racist short-sightedness. Mkhwebane charged that the striking of her case from the roll by the SCA revealed ‘a deeply ingrained bias that continues to obstruct genuine justice’. ‘The SCA’s decision to strike my appeal marks a significant setback, not just for me personally but for all those who believed in my role as a protector of public rights and accountability,’ she complained.
