It’s not about whether Busisiwe Mkhwebane should be removed from office. It’s about how the hell she got appointed in the first place.
In light of the fifth consecutive damning judgment against her, it is obvious that the strategy of weaponising the office of the Public Protector (PP) against President Cyril Ramaphosa has failed.
To weaponise, a verb. In modern usage, to take the ostensibly harmless, the nominally benign, and turn into an instrument for harm. For example, to take your walking stick and to use it to smite your enemy between the eyes.
In the South African political argot, to take the PP, an institution created with noble intentions of defending democracy, and turn it upon those opposed to state capture.
It is fortunate for Ramaphosa, their most important target, that Mkhwebane has proven to be an ineffectual weapon — persistent, yes, but far too incompetent to be fatal. With her, it’s less a case of being smitten with a teak knobkerrie and more like being flagellated with a fistful of khakibos weeds — a smelly and unpleasant experience but essentially harmless.
A full Bench of the Gauteng High Court (Pretoria) this week ruled that in investigating the financing of Ramaphosa's campaign to become the leader of the African National Congress, the “reckless” Mkhwebane had claimed jurisdiction she did not in law have. She also committed “material misdirections”, reached “irrational and unlawful” conclusions, displayed a “complete lack of basic knowledge of the law” and, in some matters, her findings were either “fundamentally flawed” or simply “unfathomable” and “totally irrational”.
The judgment is merciless at pointing out “basic errors”, “garble”, and “confusion”. In one instance, Mkhwebane purports to quote directly from Parliament’s Executive Code but, on examination of the original text, it transpires that she has changed and replaced words to cause “material differences” from the original text.
The three judges conclude that Mkhwebane “displays a deep-seated inability, or refusal, to process facts before her in a logical and fair-minded manner. Such a response is difficult to reconcile with her constitutional obligations … [and has] no foundation in fact and in law.” Furthermore, she “completely failed to properly analyse and understand the facts and evidence … [and] “displayed anything but an open mind”.
An indication of the court’s displeasure is that Mkhwebane was ordered to pay Ramaphosa’s costs, on a punitive scale. She also had to pay the costs of the other parties, although not on a punitive scale.
Given this searing assessment of her competence and character, it is hardly surprising that Mkhwebane has been stunned into complete silence. The bravado with which she met her previous judicial reversals — press conferences, media releases, and a barrage on social media, all confidently asserting that she would be vindicated on appeal — is this time absent.
Yet the Gauteng judgment says nothing that has not been said before. Said by several courts at all levels, from the High, through the Supreme, all the way to the Constitutional Court.
Last year, unpacking the PP’s laughable whitewash of state capture actors in the Vrede Dairy Farm Project, which involved the theft of around R220m intended to assist black farmers, High Court Judge Ronel Tolmay was scathing in setting aside the PP’s report as “unlawful, unconstitutional and invalid”.
Tolmay ruled that Mkhwebane’s investigatory failures and omissions were inexplicable, unless done with “some ulterior purpose”. Mkhwebane had either a “blatant disregard” for her constitutional duties or a “concerning lack of understanding” of them. Her failure to understand the law and the Constitution pointed to “ineptitude or gross negligence”.
In the Absa Bank matter, during which she lied to the High Court about having secret meetings with Zuma before finalising her report, not only were her findings reversed but she was handed a punitive costs order in her personal capacity. On appeal, the Constitutional Court confirmed the earlier finding that Mkhwebane 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” and that she had “acted in bad faith and in a grossly unreasonable manner” and could be “reasonably suspected of bias”.
While the High Court had skirted around Mkhwebane’s honesty, or lack thereof, by merely noting she had not been “frank and candid” with the court, the Constitutional Court judges identified a “number of falsehoods”. She was “not honest” and “her conduct falls far short of the high standards required of her office”.
Mkhwebane’s legal torture is by no means over. At least 62 of her 135 investigation reports are currently facing legal challenge.
Mkhwebane’s selection as PP— after initially not making the shortlist — must be seen against the ANC’s willingness to subvert the PP’s office, which was meant to be one of the guard posts of our democracy, to use it as a hit squad against the president’s foes. She was appointed not because of her legal acumen but because of her willingness to be deployed by former president Jacob Zuma’s administration as a political assassin, as evidenced by her, fortunately, thwarted attempts to take out former finance minister Pravin Gordhan.
Mkhwebane cringingly amateurish curriculum vitae, available online, is that of a mid- to senior-level public service bureaucrat, but there’s nothing stellar in her earlier career at the Department of Justice, the SA Human Rights Commission, the PP office, and Home Affairs. She also worked at the SA embassy in China and at the State Security Agency as an analyst, although the latter job is not mentioned in the CV presented to the parliamentary selection committee, where she denied Democratic Alliance accusations that she was a spy.
What she does however mention, twice, is that in 2009 she was “one of the few Senior Manager to be awarded merit award” (sic). Among her “SKILLS and ACCOMPLISHMENTS” are two more merit awards and “for the past 20 years of professional experience have been working on Ms Work, Ms Excel, AND Ms PowerPoint” (sic).
Mkhwebane holds a BProc LLB degree from the University of the North and two business law diplomas from Rand Afrikaans University. At some unspecified date she became an advocate — clearly slipping under the Bar rather than clearing it — and for the past 10 years has been working on an MBL at Unisa.
Perhaps her most obvious qualification for PP was not an academic one, but what has been described in the press as her “close personal relationship” with Zuma. But the CV details a professionally mediocre background that has ill-equipped her for such an important position, as is shown by the repeated failures of her actions to withstand judicial scrutiny.
She is now desperately unpopular, except with the Economic Freedom Fighters and the Zuma-ites in the ANC. The majority view, as reflected on social media and in media commentary, seems clear. It's time for her to go and even her staff have started calling for her departure. Her parliamentary recall is almost certain.
If she goes, it will probably be kicking and screaming. Given an annual salary of R2.3m, the expectation of an end-of-service gratuity estimated at R40.2m if she can hang in until the end of her term in 2023, and zero career prospects in the real world, one must expect the Protector to expend every effort to protect her job.
If she is fired, I can only hope that there is some kind person out there looking for a legal intern with good MS Office skills.
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North Gauteng High Court Judgment: