For once, everyone seems to agree. A slew of court rulings against the Public Protector has demonstrated, in humiliatingly scathing judicial assessments, her unfitness for office.
The only thing at issue is a credible explanation for Busisiwe Mkhwebane’s hopelessly flawed rulings. Do they stem from stupidity and ignorance or are they the calculated outcome of her political allegiance to the embattled Zuma/Gupta faction of the African National Congress that placed her in the job?
This week, following an application by the Democratic Alliance and the Council for the Advancement of the South African Constitution, High Court Judge Ronel Tolmay issued her judgment on Mkhwebane’s report on her investigation into the Vrede Dairy Farm Project. The Gupta-linked project saw the theft of around R220m of funds intended to set up black farmers.
It's a searingly critical judgment. Tolmay writes that Mkhwebane’s failures and omissions in the investigation were inexplicable unless they were done with “some ulterior purpose”. There was either “a blatant disregard” by Mkhwebane of her constitutional duties or a “concerning lack of understanding” of them. This failure to understand the law and the South African Constitution pointed either to “ineptitude or gross negligence”.
Tolmay’s judgment is worth reading, alone, for its tone of barely contained judicial impatience. But with due respect to Tolmay, the question is not whether Mkhwebane is simply useless or whether she is a political tool. It is possible, and on the evidence likely, that she is both.
The Office of the Public Protector, along with the SA Human Rights Commission, is one of the most important institutions established by the Constitution to “support and defend” democracy. Accountable only to the courts and Parliament, it has the power to investigate virtually anything or anyone, and then to order other state agencies, such as the police and the National Prosecuting Authority, to act on its findings.
For the advocate heading the Office to be lambasted so thoroughly by the High Court and then to have her report set aside as “unlawful, unconstitutional and invalid” would be crushing if it happened only once in a career. But for Mkhwebane, this is the third major reversal in just two years.
In one of the appeals, the SA Reserve Bank matter, she eventually had to concede that she was unaware that she did not have the power to order Parliament to amend the Constitution. That’s something that most first-year law students would know.
In the other, regarding Absa, the court found that she did not comprehend that her high office placed on her an obligation to be “objective, honest and to deal with matters according to the law”. That’s another something that a first-year law student would know.
Mkhwebane’s defiant response to what she describes as the “astonishing” Vrede judgment is to lodge an appeal. She is apparently merely weighing her options of going to the Supreme Court or applying for direct access to the Constitutional Court.
Given her record of 100% failure when subject to judicial review, this may be yet another example of her ignorance of the law. Or it might be the crafty application of the so-called Stalingrad-strategy that is much favoured by the state capture faction of the African National Congress government — to use taxpayer funds to interminably delay punishment.
Mkhwebane should be circumspect and read the tea leaves. The courts are becoming increasingly tired of frivolous state-funded appeals.
In the Absa case, the court took the rare step of indicating its displeasure at her behaviour by making her personally accountable for some of the legal costs incurred. If she takes the Vrede case to a higher court on frivolous or vexatious grounds and loses, she may well face another costs order against her in her personal capacity.
Advocate Mkhwebane is a disgrace to the law and an embarrassment to the country. But we should not forget that she is merely fulfilling the unwritten part of her employment contract.
The Public Protector is appointed by the President. In effect, the office is yet another ANC cadre deployment position and — until President Jacob Zuma miscalculated spectacularly with Thuli Madonsela — every Protector appointed has delivered the head-bobbing and arse-licking that was expected of them.
With Mkhwebane, the appointment process for the first time included public hearings, but again, the final decision was down to the ANC majority on the committee, abetted by the Economic Freedom Fighters. Mkhwebane was never the best candidate: her strongest qualifications were being ANC, black, and a woman.
Madonsela showed how the Office of the Public Protector could be used to implement the noblest intentions of the constitution-drafters; Mkhwebane, how to advance the most base intentions of those would destroy it.
When Mkhwebane is dumped, and that must be imminent, a new, non-partisan process must be put into place to select her successor. Perhaps one of those first-year law students could come up with something.
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