Legalbrief | your legal news hub Wednesday 29 September 2021

Mkhwebane’s fate in the balance

Two years and eight months of madness. That’s the frank assessment by the Sunday Times of Public Protector Busisiwe Mkhwebane’s term in office. And Legalbrief notes that this appears to reflect the mood of the moment as all of SA looks to this critical institution to help guide it through troubled waters. Rarely does a day go by without Mkhwebane being front page news for her statements and findings which are invariably overturned in court. Not only has she dismissed President Cyril Ramaphosa’s request to cross-examine witnesses in the Bosasa funds matter in which he is implicated, but she has also taken a swipe at her predecessor, provided details of several investigations into Public Enterprises Minister Pravin Gordhan, and revealed she has several other Cabinet Ministers in her sights, among them Health Minister Zweli Mkhize, Defence Minister Nosiviwe Mapisa-Nqakula, and Higher Education, Science & Technology Minister Blade Nzimande. All of this is recorded in a wide-ranging interview with City Press in which she also rejects perceptions that she was a beneficiary of the ‘Zuptas’ – former President Jacob Zuma and the Gupta family. On her predecessor, she suggested Thuli Madonsela had involved herself in the narrative that Mkhwebane was a ‘Zupta’ deployee. Mkhwebane also spoke about a brush with administrators at the Zondo Commission of Inquiry into State Capture when ‘the acting secretary demanded records (related to) Vrede and even (asked) to interview my staff'. She subsequently met commission chairperson Deputy Chief Justice Raymond Zondo to air her concerns about the instructions because the Public Protector was a Chapter Nine institution and as such was independent and only accountable to Parliament.

Mkhwebane’s refusal to allow Ramaphosa's request to cross-examine Maimane could result in legal action, according to a Sunday Times report. Ramaphosa's office said on Saturday he was ‘disappointed’ that Mkhwebane had refused his request because the Presidency believes it was Maimane and not Ramaphosa who had misled Parliament over the saga. The Presidency said Maimane's ‘conduct on the day in Parliament’ when he first questioned Ramaphosa about money that Bosasa had paid into an account linked to his son Andile was ‘relevant to any fair assessment of the President's response’. The report speculates that the statement seems to suggest that the Presidency may use Mkhwebane's refusal as potential grounds for a legal challenge of her final Bosasa report.

As columnist Sydney Majoko notes in another hard-hitting analysis in The Citizen, Mkhwebane has the powers to hold the executive to account – and those are no ordinary powers. ‘Why is it necessary to examine her powers? Because she doesn’t fully appreciate those powers. She has gone on record saying “God placed me in that office and only God can remove me”. She has had an equivalent of a meltdown on Twitter and continues to deny alleged links with the Guptas, former President Jacob Zuma or the faction that wants Ramaphosa gone. She claims “people must comply with her remedial action because as long as she’s in that office, she’s still the Public Protector.” That is shallow thinking. Were it not for the parliamentary break due to elections, chances are she would be facing an inquiry into her fitness to hold office. It then beggars belief that on the back of a ruling that has been deemed “unconstitutional”, she has gone straight ahead, all guns blazing, to defend her other findings. What has become clear is that, like a raging bull in a china shop, she has decided to issue as many reports as possible – in the process, damaging the reputations of whoever happens to be in her crosshairs.’

Who is pulling Mkhwebane’s strings? The Mail & Guardian's Natasha Marrian says this ‘key’ question arises from the very divided opinion about ‘an enigma wrapped in a mystery’. She says only time will tell whether Mkhwebane has a political master or whether she is acting in line with her constitutional mandate. ‘Evidence suggests there is a reporting line out there, given that a significant number of her reports have been successfully challenged and overturned in court.’ Marrian says what is critical is that – despite the office of the Public Protector potentially being occupied by someone whose loyalty to the Constitution cannot be trusted or guaranteed – the office has to be respected. ‘The institution cannot be destroyed simply because of the individual occupying it. Recent experience shows that once destroyed, critical institutions may take years to recover,’ she adds. Marrian says the Office of the Public Protector has to remain intact. ‘If removing Mkhwebane ensures that this is done, so be it. But it is critical that this is done fairly and within the ambit of the law.’

While Mkhwebane has a growing list of detractors, she continues to receive the backing of several heavyweights. These include the EFF which has dismissed the DA’s motion for her removal from office as ‘a waste of time’. And a report on the News24 site notes that the Black Lawyers Association has urged that criticism be ‘measured and reasonable as opposed to being partisan and driven by ideological connotation’. Noting that Mkhwebane has indicated she intends to appeal the adverse Gauteng High Court (Pretoria) ruling in the Vrede Dairy Farm matter, it says it is ‘unnecessary and premature for institutions that have a professed objective of protecting and advancing the Constitution to castigate’ her and her office ‘as if she has already been found to be unsuitable for the office’. While Mkhwebane enjoyed the support of the EFF, UDM and African Transformation Forum, her future would be sealed if the governing party backed the motion tabled by DA Chief Whip John Steenhuisen last month. The Sunday Independent reports that the trio collectively hold only 48 seats of the 400 seats in the National Assembly. The ANC holds 230 seats and the DA 84. This comes after Speaker of Parliament Thandi Modise confirmed in a letter to Steenhuisen that ‘the matter will be referred to the Portfolio Committee on Justice and Constitutional Development for consideration’.