Public Protector Busisiwe Mkhwebane's handling of cases laying on the African National Congress's (ANC's) internal faultlines - the Estina Dairy case, the CR17 donations, rogue unit, and South Africa Reserve Bank (SARB) – are among the reasons an independent panel found there is incompetence and misconduct on Public Protector Busisiwe Mkhwebane's warranting impeachment.

After reviewing about 10 396 pages of documentation, the panel - chaired by Justice Bess Nkabinde, with advocate Dumisa Ntsebeza SC and advocate Johann de Waal SC - presented its 119-page report to National Assembly Speaker Thandi Modise last week.

The report was released to the public on Monday.

Per the Constitution, the head of a Chapter 9 institution, like the Public Protector, can be removed on the grounds of incompetence, misconduct or an inability to perform the required functions (for instance due to illness).

The first two are the ones in play in the motion Democratic Alliance chief whip Natasha Mazzone lodged with Modise in February 2020 after withdrawing her initial motion, brought in December 2019, days after the National Assembly adopted rules for the removal of a Chapter 9 head.

Much of the material the panel considered consisted of court rulings and other court papers. It also considered representations by Mkhwebane.

She challenged the validity of the process on several grounds - including her right to incriminate herself with regards to the pending perjury case against her - and questioned whether the panel was properly constituted.

The panel dismissed these challenges.

Mkhwebane's answers to the substantive issues also failed to impress the panel.

The panel found "substantial information that constitutes prima facie evidence of incompetence".

"There are a number of examples of such incompetence, the most glaring of which is the prima facie evidence demonstrating that PP grossly overreached and exceeded the bounds of her powers in terms of the Constitution and the PPA by unconstitutionally trenching on Parliament's exclusive authority when she directed Parliament to initiate a process to amend the Constitution," read the report.

The panel also found "repeated errors of the same kind such as the incorrect interpretation of the law and other patent legal errors". The panel also found there was "sufficient information" that constitutes prima facie evidence of misconduct.

This includes Mkhwebane's failure to reveal she had a meeting with then-president Jacob Zuma and the State Security Agency (SSA) in her investigation into the SARB "thereby displaying non-compliance with the high standards of ethics" required by the Constitution.

"Turning to another example, namely the Vrede Dairy Report, the PP, amongst other things, altered the final report and gave the premier [former Free State premier Ace Magashule and now ANC secretary-general], who was implicated, the discretion to determine who the wrongdoers were…" the report read.

"Additionally, the PP patently made a wrong finding on money laundering in the CR17 matter and doubted the bona fides of the president [Cyril Ramaphosa] without any reason."

The panel found the last one to be prima facie evidence of both incompetence and misconduct.

What happens next, depends on whether the National Assembly - where the ANC holds the majority - decides and the matter could well expose how strong the so-called RET faction is in the ANC caucus.

The RET faction, who coalesces around Magashule and opposes Ramaphosa, is believed to support Mkhwebane. She can also bank on the support of the Economic Freedom Fighters' (EFF's) 44 seats, and the African Transformation Movement's two.

EFF chief whip Floyd Shivambu tweeted on Monday after the report was released: 

The Public Protector @AdvBMkhwebane is not going anywhere. She will finish her 7-year term in office.

The next step in the process for the National Assembly is to consider the panel's recommendation. A simple majority is necessary to adopt this, so even if only half of the ANC's 230 MPs vote with the DA and some of the other opposition parties, the motion should pass.

In that case, the matter will be referred to a committee to conduct an inquiry into Mkhwebane's fitness for office. She will have an opportunity to appear before this committee.

It is still unclear whether it will be referred to the Portfolio Committee on Justice and Correctional Services, or whether an ad hoc committee will be appointed.

The ANC contingent on the portfolio committee has played matters about the Public Protector with a straight bat, compared to their predecessors in the Fifth Parliament, who was at the time openly antagonistic towards former Public Protector Thuli Madonsela, especially after her report on Nkandla.

If an ad hoc committee is established, the make-up of its ANC members will be instructive.

The motion is still to be scheduled to be considered by the National Assembly whose programming meeting is on Thursdays.

News24 approached the Office of the Public Protector for comment which indicated it was still considering its comment. This will be reported once received.