The Constitutional Court has sanctioned the public protector, Adv Busisiwe Mkwebane, for abusing the position of her office in failing to report her findings in an objective manner. Legal expert Mike Pothier considers the possible reasons for the public protector’s chequered performance.
South Africa’s politics is never short of irony. The previous Public Protector, Adv Thuli Madonsela, made her name by rigorously investigating and exposing state capture and other deviant behaviour by holders of public office during Jacob Zuma’s presidency. She turned her office into one of the relatively few bulwarks against the pervasive corruption and rot of the Zuma/Gupta axis.
Now, just as the country has rid itself of Zuma, and can begin trying to rebuild the shattered state, Madonsela’s successor, Adv Busisiwe Mkhwebane, seems bent on dragging it backwards by doing her utmost both to undermine key institutions – such as SARS and the Reserve Bank – and to derail the crucial reforming efforts of individual leaders like Cyril Ramaphosa and Pravin Gordhan.
This is, of course, an over-simplified juxtaposition. The public protector’s office carries out hundreds of investigations annually, only a few of which hit the headlines. Most of them are routine and uninteresting except to those citizens directly affected.
In the early part of her tenure, Adv Mkhwebane’s findings certainly did not favour the state capture faction. In February 2018, for example, she found that former ministers and Zuma stalwarts, Lynne Brown and Des van Rooyen, had both misled Parliament, and thus violated the Executive Ethics Code — in the matters of an Eskom contract and contacts with the Gupta family, respectively.
More recently, however, the overall thrust of her findings in high-profile and politically sensitive matters have been against the reforming tendency within government and the state, often on very questionable grounds. So questionable, indeed, that we have become used to the embarrassing spectacle of the courts having to castigate the public protector on an absurdly regular basis.
And the castigation has been brutal, by judicial standards: “The Public Protector did not conduct herself in a manner which would be expected from a person occupying the office of the Public Protector… She did not have regard thereto that her office requires her to be objective, honest and to deal with matters according to the law…” and that she was “reasonably suspected of bias,” said the North Gauteng High Court in reaction to her findings on purported misappropriation of funds by ABSA and the Reserve Bank.
The court that set aside her report on the failed Estina Dairy Farm enquiry said that “the failure of the PP [public protector] to execute her constitutional duties in investigating and compiling a credible and comprehensive report points either to a blatant disregard to comply with her constitutional duties and obligations or a concerning lack of understanding of those duties and obligations.”
And now the Constitutional Court, in confirming the order that she should personally pay 15% of the costs in the Reserve Bank case, has used phrases such as “the number of falsehoods that have been put forward by the Public Protector”; “misrepresenting, under oath”; “failing to disclose material meetings and then obfuscating the reasons for them”; “generally failing to provide the court with a frank and candid account of her conduct.”
Short of being sent to jail for a serious crime, it doesn’t get worse than this for a litigant. If Adv Mkhwebane had any integrity she would have resigned some time ago. However, since she does not appear to be the resigning type and it remains unclear whether there is sufficient political will in Parliament to begin dismissal procedures against her, we are probably stuck with her for some time.
That being the case, it is worth trying to figure out what lies behind her apparent inability or unwillingness to do her job properly. Three possibilities come to mind.
Firstly, it may be that Adv Mkhwebane genuinely believes that she is carrying out her duties diligently, without fear or favour. She could argue that her recent, and ongoing, investigations on the likes of Pravin Gordhan, President Ramaphosa and now the new head of SARS merely reflect the complaints she receives. These people are now in power, and possibly abusing it while Zuma and most of his cronies have left power and there is no longer anything about them to investigate.
That Adv Mkhwebane has been found by the courts to have been variously incompetent, dishonest, and biased does not prove that she is not, by her own assessment, doing her best; merely that her best is nowhere near good enough.
Secondly, we may be witnessing a simple exercise in egotism and self-aggrandisement . It would not be the first time in our political landscape. One stand-out example was Hlaudi Mostoaneng of SABC fame, who quite clearly lacked the faintest idea of how to run a public broadcaster, and whose only response to criticism – and the SABC’s impending bankruptcy – was to intensify the grandeur of his fantasies.
Every time Adv Mkwebane is slapped down by the courts, she seems to come back with more of the same, as if driven by single-minded determination to pursue notoriety for its own sake.
Thirdly, perhaps she is indeed playing a political game. Perhaps — as quite a few people now think, and as the DA warned at the time — her selection was a carefully planned coup by the state capture faction, designed to neuter the office of the public protector, which under Adv Madonsela had been such a thorn in their side.
This seems unlikely, however. The nomination and selection process was remarkably open and transparent, and all of the political parties — except the DA— and many civil society organisations which participated supported her candidacy.
She was by no stretch of the imagination among the weaker of the 14 shortlisted candidates. On the other hand it was suspicious then —and more so now — that one of the most obvious choices to succeed Adv Madonsela, her deputy, Adv Kevin Malunga, was revealed at the last moment to lack the necessary security clearance to assume the top job.
An equally likely scenario is that Adv Mkhwebane was captured after her appointment, or even that she has independently decided that her ambitions – whatever they may be – will be best served by siding with the forces that are now ‘pushing back’ against the reforming efforts of Ramaphosa’s presidency.
None of these possibilities offers us much comfort. Neither will there be much comfort if Parliament decides to initiate steps towards her dismissal. Not only will the EFF champion her (despite calling for her dismissal a little over a year ago), so will quite a few ANC MPs, even if they are forced to do so surreptitiously.
If she is dismissed, she will no doubt head to the courts to vindicate her position. The battle will be long, selfish, politicised and constitutionally unedifying.