Advocate in the public’s perception? Report on the Public Protector’s first 100 days in office

17/10/2016 - 24/01/2017

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Report on the Public Protector’s first 100 days in office Report

Table of contents Page

Introduction 4 Legal basis 5 CV Adv. Busisiwe Mkhwebane 6 Objections by Opposition & Appointment 8 Media Statements & Reports – Timeline 8 Conclusion 13

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Introduction

The office of the Public Protector (PP) was created by the President would eventually approve the appointment. Constitution of the Republic of 1996 as one of the instruments to create checks and balances and limit From a shortlist of 14 candidates, which included Judge the power of Parliament and the Government. The PP and Sharise Weiner, Judge Sirajudien Desai, Adv. Kevin Malunga, other Chapter 9 institutions were heavily debated during Adv. Nonkosi Cetywayo, Adv. Mhlaliseni Mthembu, Adv. the discussions around the adoption of the Constitution. Madibeng Mokoditwa, Adv. Mamiki Goodman, Prof. Narnia Their eventual inclusion in the Constitution was therefore a Bohler-Muller, Prof Bongani Majola, Ms Jill Oliphant, Ms victory for the South African people, although the first public Muvhango Lukhaimane, Ms Kaajal Ramjathan-Keogh, and protectors were relatively unknown and they were often Mr Willie Hofmeyr, Ms Busisiwe Mkhwebane eventually criticised for not performing their constitutional duties. emerged victorious, if one can call it that, and was appointed as the new Public Protector. With transforming the office of the Public Protector from a rather unknown and almost insignificant This report aims to evaluate the new Public Protector’s state institution to virtual rock star status in South Africa first 100 days in office, starting from her first day at the through her handling of the Nkandla case and her state office on 17 October 2016. To provide ample background capture report, the end of her tenure in 2016 left some large on the (new) PP, this report starts with a legal background shoes for her successor to fill. and her CV, followed by the objections raised by the Democratic Alliance during the selection process, and The process to determine who the next PP would be started her eventual appointment. The report then provides a on 24 May 2016, when the National Assembly appointed timeline-based overview of media statements by the an ad hoc committee to oversee the appointment process. office of the PP and media reports by independent media The committee was to scrutinise the nominations, shortlist outlets in order to provide insight into Adv. Busisiwe the candidates and interview those on the list in order to Mkhwebane’s actions during the period between 17 October eventually present their choice of candidate to Parliament. If 2016 and 24 January 2017, and the perception she has Parliament then endorsed the recommended candidate, the thereby created of herself.

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Legal basis

Powers and Functions further details regarding the establishment and appointment Section 181(1)(a) of Chapter 9 of the Constitution of the of the PP are outlined in the Public Protector Act 1994 (Act Republic of South Africa 1996 (the Constitution) makes No. 23 of 1994) (the Act), as amended by the Public Service provision for the establishment of the Public Protector (PP) Laws Amendment Act 1997 (Act No. 47 of 1997); the as a state institution in order to ‘strengthen constitutional Public Protector Amendment Act (Act No. 113 of 1998); the democracy in the Republic’. Subsection 2 of section 181 Promotion of Access to Information Act (Act No. 2 of 2000); further dictates that the PP is independent and subject only the Public Protector Amendment Act (Act No. 22 of 2003); to the Constitution and the law, that the office must be the Prevention and Combating of Corrupt Activities Act (Act impartial and that it must exercise its powers and perform No. 12 of 2004); and the Determination of Remuneration its duties without fear, favour or prejudice. Subsection 3 of of Office-bearers of Independent Constitutional Laws section 181 states that other organs of state are to assist Amendment Act (Act No. 22 of 2014). and protect the PP through legislative and other measures in order to ensure its independence, impartiality, dignity and Section 1A of the Act deals with the establishment and effectiveness. Finally, subsections 4 and 5 of section 181 appointment of the PP and reads as follows: stipulate that no person or organ of state may interfere with (1) There shall be a Public Protector for the Republic. the work of the PP and that the PP is accountable solely to the National Assembly, to whom he or she must report on (2) The President shall, whenever it becomes activities and performance at least once every year. necessary, appoint a Public Protector in accordance with the provisions of section 193 of the With regard to the PP’s own functions and powers, section Constitution. 182(1) of the Constitution confers the following powers on the PP; namely to (3) The Public Protector shall be a South African citizen who is a fit and proper person to hold such (a) investigate any conduct in state affairs, or in the office, and who- public administration in any sphere of government, that is alleged or suspected to be improper or to (a) is a Judge of a High Court; or result in any impropriety or prejudice; (b) is admitted as an advocate or an attorney and (b) to report on that conduct; and has, for a cumulative period of at least 10 years after having been so admitted, practised as an advocate (c) to take appropriate remedial action. or an attorney; or These powers are explained and complemented, as per (c) is qualified to be admitted as an advocate or an section 182(2) of the Constitution, by additional powers attorney and has, for a cumulative period of at least and functions as determined by national legislation such as 10 years after having so qualified, lectured in law at sections 7 and 7A of the Public Protector Act 1994 (Act No. a university; or 23 of 1994). However, section 182(3) provides that the PP may not investigate court decisions. Subsections (4) and (d) has specialised knowledge of or experience, (5) of section 182 of the Constitution state that, in order for a cumulative period of at least 10 years, in the to perform its functions, the PP must be accessible to all administration of justice, public administration or persons and communities and that any report issued by public finance; or the office must be open to the public, unless exceptional circumstances, to be determined by national legislation, (e) has, for a cumulative period of at least 10 years, require the confidentiality of a specific report. been a member of Parliament; or

Tenure and appointment (f) has acquired any combination of experience Whereas the Constitution determines in section 183 that the mentioned in paragraphs (b) to (e), for a cumulative PP is appointed for a non-renewable period of seven years, period of at least 10 years. further details regarding the establishment and appointment Whereas the Constitution determines in section 183 that the (4) The Public Protector shall not perform PP is appointed for a non-renewable period of seven years, remunerative work outside his or her official duties.

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CV Adv. Busisiwe Mkhwebane Nationality: African, gender: Female Education University of South Africa School of Business Leadership 2010 Course work completed for master’s degree in Business Leadership (MBL)

2014 Research in progress

Rand Afrikaans University (RAU) 1997 Qualification obtained: Diploma in Corporate Law (Company Law, Close Corporations) Rand Afrikaans University (RAU) 2002 Higher Diploma in Tax Law University of the North 1992 Qualification obtained: B.PROC University of the North 1994 LLB Mkhepula Secondary School 1992 Qualification obtained: National Senior Certificate (Matric)

Professional experience immigration services within PRC; liaised with stakeholders within the mission and in PRC; identified immigration trends 02/07/2014 – Present Department of Home Affairs and patterns that pose a risk to South Africa and maximised Branch: National Immigration Services economic benefits to the RSA; was awarded merit award for Position: Director: Country Information and Cooperation performing management and adjudication tasks; facilitated Management establishment of visa facilitation office (outsourced office); Key performance areas: Provided strategic direction and was awarded a merit award for exceptional performance in leadership to the Directorate; developed and managed a 2012. framework to conduct research into the political, social, economic and cultural situation of countries from which 01/06/2005 – 01/09/2009 Department of Home Affairs persons who claim asylum in South Africa originate in order Branch: National Immigration Services to support the adjudication of asylum claims; identified Position: Director: Refugee Affairs sources of information and developed and formalised a 01/10/2009 – 31/03/2010 Department of Home Affairs framework of engagement with critical government and Branch: National Immigration Services civil society stakeholders for the sourcing and provision of Position: Acting Chief Director Asylum Seekers information; established, managed and updated a country- Management (ASM) of-origin information database; prepared and managed the Key performance areas: Managed asylum seekers Directorate’s budget; ensured compliance with human management centres in four provinces: , KwaZulu- resources policies and prescripts; identified and managed Natal (Durban), Eastern Cape (Port Elizabeth), and Western risks within the directorate. Cape (Cape Town), and provided refugee services leadership 27/04/2010 – 01/07/2014 South African Embassy in the and strategic direction within immigration branch and Republic of China (PRC) centres in accordance with the Refugee Act, 1998. Branch: National Immigration Services Branch Main activities: Position: Counsellor Immigration and Civic Services Key performance areas: Provided civic and immigration • Ensured standardisation of operations in the five services leadership and strategic direction within the refugee reception offices nationally; formulated People’s Republic of China (PRC); ensured standardisation of strategy for integration of refugees into society and operations and services within China; monitord and reported presentation for approval by the security cluster on the performance of the Home Affairs operations within the mission; drove quality and effective delivery of civic and • Formulated the strategy for integrating refugees after

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declaration of cessation clause in terms of the UN 01/12/1994 – 31/06/1996 Department of Justice Convention on Refugees and presented same to Branch: International Affairs Directorate Cabinet for approval Position: Legal Administration Officer Key performance areas: Worked as maintenance officer • Employed more than 300 employees within refugee and prosecutor for minor cases during university holidays affairs after the creation of more posts, including the from 1989–1994 and worked full time as prosecutor of filling of five centre manager posts at deputy director criminal cases and maintenance cases. and director level Skills and accomplishments • Led, directed and oversaw the Refugee Backlog Project, a ministerial project, which was successful; Advocate of the High Court monitored and reported on the performance of the Refugee Backlog Project Refugee Law and Immigration Law specialist

• Oversaw the identification and building of refugee • Was awarded merit award for performing reception offices according to the process flow, which management and adjudication tasks; facilitated facilitated speedy processing of asylum applications establishment of visa facilitation office (outsourced office) and received a merit award for exceptional • After the minister had approved the centralisation performance in 2012 of refugee affairs, managed a budget of more than R60 million by forecasting, budgeting and allocating • Operations management skills: Established the resources accordingly Gauteng office of the Public Protector and the five refugee reception offices based on the principles • Ensured effective development of service-level of operations management, including the process agreements with suppliers improvement of refugee affairs so that finalisation of manifestly unfounded asylum applications was • One of the few senior managers to be awarded merit achieved and refugee status could be issued within award in 2009 30 days; effective processing of temporary residence visas within five working days and permits within four 01/05/1999 – 31/05/2005 Office of the Public Protector weeks instead of the target of eight weeks Position: Senior Investigator and Acting Provincial Representative (Director) • Leadership and management skills: Spearheaded the Key performance areas: Investigated government organs centralisation of refugee affairs, draft business plan of of state for maladministration, undue delay and practices; refugee affairs and Beijing Mission; capacitated the provided strategic direction to the operations of the Gauteng offices and allocated all needed resources, including provincial office; identified the office accommodation and the overseeing of the Refugee Backlog Project; oversaw the renovations of the building according to the facilitated the establishment of the visa outsource operations of the office; employed four investigators for the offices both in Beijing and Shanghai; standardised the office; managed the budget and allocation of resources; operations of the two missions, improved customer liaised with stakeholders within the province, including service and service delivery; managed the budget of provincial departments, municipalities and relevant NGOs. more than R60 million of Refugee Affairs

01/09/1998 – 31/04/1999 South African Human Rights • Computer literacy: for the past 20 years of professional Commission experience worked in MS Work, MS Excel, and Position: Senior Researcher MS PowerPoint, was the project leader for the new Key performance areas: Conducted desktop research refugee system and commissioned the usage of the on trends and developments in the field of human rights; visa system, internet for research and report writing, assisted with the development of a report on the state of etc. human rights in South Africa in 1998. • One of the few senior managers to receive merit 01/07/1996 – 31/08/1998 Department of Justice award in 2009 Branch: International Affairs Directorate Position: Legal Administration Officer Ten years’ experience in senior management with Key performance areas: Assisted the director with the immigration services branch and 20 years’ professional monitoring of treaties RSA has with other countries; drafted experience. various extradition treaties and mutual legal assistance memorandums of understanding with other countries.

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Objections by opposition and appointment

On 6 September 2016 the Democratic Alliance (DA) released • The DA’s opinion that both Judge Weiner and Prof. a written version of the speech given by MP Glynnis Majola were stronger candidates, mentioning Breytenbach at a press conference in Parliament, outlining Prof. Majola’s involvement in the Special Tribunal in the reasoning behind the DA’s decision not to support the Rwanda and resulting distance from the South African nomination of Adv. Busisiwe Mkhwebane for the post of Government as a positive factor. Public Protector. The reasons included: • The DA’s reasoning that Adv. Mkhwebane’s experience • Her lack of experience compared to other candidates. as a senior investigator at the office of the PP had been obtained during the tenure of Lawrence • Her previous employment as a director at the Mushwana, who had showed little interest in openly Department of Home Affairs with a salary of R1 million investigating government corruption, therefore she annually, a post which she left in June 2016 for a post might not either. as analyst for the State Security Agency, which was a demotion in reality. During her speech in Parliament the following day, Breytenbach reiterated the above and, although she • When queried about this self-chosen demotion, her acknowledged the possibility that Adv. Mkhwebane would response was that she ‘was passionate about the turn out to be a good PP, warned against the likelihood of her Constitution’, and although that is a noble value, the being on the State Security Agency’s payroll as a pawn in DA did not consider it sufficient to separate her from President ’s effort to remain in power. the more qualified candidates. Despite the DA’s opposition, 263 members voted in • A suspicious appointment as immigration officer in favour of Adv. Mkhwebane, while 79 voted against the China was rumoured to have been code for being on recommendation and one abstained from voting. This put the payroll of the State Security Agency. the ball in President Jacob Zuma’s court. He then appointed her the new PP on 6 October 2016.

Media Statements & Reports – Timeline

The following is a summary of selected opinions and media such a spy is not one of proclaiming independence, speaking articles by independent media outlets with regard to the the truth to power or protecting the public. The author notes actions of the new PP, combined with media statements Mkhwebane’s unwillingness or inability to answer questions from the office of the PP. The summaries are presented regarding this specific subject. chronologically according to the date of the article or statement, starting with the oldest and ending with the With regard to the second aspect, protecting the public, the newest reports. author notes that her career has not been one marked by taking a stance in favour of the public. The author also notes 19/10/2016 – Daily Maverick the collaborative and non-confrontational nature that Adv. Op-Ed: New Public Protector has to allay Mkhwebane believes should characterise the relationship apprehensions between her office and the executive. This, combined with signals that Adv. Mkhwebane believes that ordinary, rather In this opinion article, the author revisits three aspects of than high-profile cases, should receive the greatest attention Adv. Mkhwebane’s appointment, namely her curious career from the PP, stands in sharp contrast with the recent history trajectory, her past experience and future of protecting the and relationship between the executive and Adv. Madonsela. public, and the high stakes concerning her post. Last but not least, the author believes that the stakes The first aspect deals with Adv. Mkhwebane’s curious last- surrounding the new PP are high. With the Nkandla and held position as a self-proclaimed ‘spy’ in the State Security sagas all over the news and cadre deployment Agency. The author considers that the mind-set required for not unfamiliar to South Africa, the author suggests that

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President Jacob Zuma’s insistence that Adv. Mkhwebane donor funds. The latter statement was in response to a $500 deal with state capture puts an unnecessary burden on her 000 donation that had been received by the PP’s office, and suggests that she will be more sympathetic to him. which Mkhwebane admitted could possibly affect the PP’s independence. 19/10/2016 – Public Protector Public Protector requests Parliament’s support in 20/10/2016 – Times Live addressing urgent institutional challenges Busisiwe Mkhwebane bares claws towards Thuli Madonsela This media statement describes the inputs made by Adv. Mkhwebane during the meeting with the Portfolio This article also reflects on the new PP’s first appearance Committee on Justice and Correctional Services, where before Parliament’s Portfolio Committee on Justice and she had to present the 2015/2016 annual report. Although Correctional Services. Its opening sentence leaves little to she reiterated her commitment to empowering people at the imagination: grassroots level to hold their leaders to account, she denied widespread claims that she would give less attention to Problematic staff morale, no proper handover, high-profile cases. She further announced the introduction of funding problems and a family matter to resolve: a backlog system intended to dispose of old cases. This is new Public Protector Busisiwe Mkhwebane’s take on what she is inheriting from her popular In order to effectively manage costs, Adv. Mkhwebane told predecessor Thuli Madonsela. the committee that the office of the PP would continue to use economy flights for official travel and that there would The author analyses the promises made in Parliament by the be a moratorium on international travel from 18 October new PP, such as doing away with donor funding, consultants 2016 until further review. She requested additional funding and catchy names for PP reports. The author also indicates from the committee in order to address the capacity that she will improve staff morale, as she claimed this was challenges, procure sufficient expertise to deal with a low, and refers to the $500 000 donation received from backlog of cases, increase security at the PP’s offices, create USAID. With regard to that donation, Adv. Mkhwebane is additional office space, enable video conferences, and other quoted as having said that she will do away with donor improvements. funding in order to prevent independence issues resulting therefrom. Outlining the challenges her office faced, she Finally, the committee was given an opportunity to direct mentioned the case management system that had crashed, questions at the new PP, and the PP committed herself to the backlog of cases and inadequate office infrastructure. providing the committee with a written report on issues to Adv. Mkhwebane complained to Parliament about the lack which she and her team could not immediately respond. of a proper handover from her predecessor, Adv. Madonsela, In closing, Adv. Mkhwebane once more mentioned the who she claimed had met with her only for about 20 importance of clearing the backlog, although she deemed minutes on the day of Madonsela’s final press conference. other cases that contributed to poverty, unemployment and inequality to be important as well. She then announced that 21/10/2016 – Times Live she was preparing an affidavit on the state capture report, to New Public Protector Busisiwe Mkhwebane be filed in court on Friday (21/10/2016), before allowing the reportedly instructed her staff during her first chair to conclude the meeting. week in office to change the TV news feed from 20/10/2016 – City Sun eNCA to ANN7 Busisiwe Mkhwebane reveals R5 million In short, this article reveals how Adv. Mkhwebane allegedly irregular spending and $500 000 donor funding ordered staff to change the channel on all PP televisions from US development agency from eNCA to the Gupta-owned ANN7. According to the article, the PP confirmed having asked her staff why all Referring to the PP’s meeting with the portfolio committee TVs were tuned to eNCA, saying she wanted them to use above, the author opens his article with Adv. Mkhwebane’s a wider variety of broadcasts in order to obtain a broader request for more funding in order for the PP to fulfil its perspective. duties, revealing that R122 million of the R262 million budget had already been spent. R5 million of the R122 million spent 21/10/2016 – eNCA appeared to have been irregularly spent, and questions were Mkhwebane will not fight Zuma’s state capture raised regarding the amount of international travel during report interdict Adv. Madonsela’s time in office. Mkhwebane committed herself to not using any consultants, nor to apply for any This article reports on PP Mkhwebane’s decision not to

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oppose President Jacob Zuma’s interdict against the release 27/11/2016 – Democratic Alliance of the so-called state capture report. In addition, she also Public Protector is dancing to Zuma’s tune withdrew opposition to a similar application by cooperative government minister Des van Rooyen. In this article, written by the DA’s Glynnis Breytenbach, it is claimed that Adv. Mkhwebane had laid criminal charges The state capture report, drafted by Adv. Mkhwebane’s against Adv. Madonsela with respect to the release of a predecessor, Adv. Madonsela, had been sent to the PP’s recording that exposed President Jacob Zuma’s repeated office by Parliament after a successful court bid by the lies about not having been given an opportunity to respond Presidency to halt its release. The report was, at that time, to allegations of state capture against him. The DA’s problem expected to contain explosive details of the ’s is not so much with President Zuma’s right to lodge a involvement in allegedly influencing the appointment of grievance with the PP, but rather with the fact that she government ministers. allegedly jumped straight to criminal charges without having conducted a proper investigation. The latter, the DA feels, Using tweets and screenshots of the court papers to could have been done by President Zuma himself, but he illustrate, the article explains that the PP felt she was not in rather used Adv. Mkhwebane, making her look like a pawn a position to advocate the report’s release, nor to grant Van and protector of the interests of President Zuma, rather Rooyen and Zuma additional time to make representations than the interests of the people of South Africa. In addition, in court. Breytenbach also writes that the PP had all the locks in the 28/10/2016 – Public Protector PP’s offices changed and redeployed staff who had worked Public Protector to host AOMA General closely with Adv. Madonsela in an effort to undermine the previous PP’s work. Assembly in Durban 28/11/2016 – Public Protector In short, this media statement announces that Adv. Mkhwebane will host the 5th Biennial General Assembly Public Protector clarifies incorrect media reports of the African Ombudsman and Mediators Association In this media statement, Adv. Mkhwebane expresses her in Durban, KwaZulu-Natal from 1 to 4 November 2016, in sadness about media reports claiming that she had laid her capacity as Chairperson of the African Ombudsman charges against her predecessor, Adv. Madonsela. The Research Centre (AORC). audio recordings concerned were part of the state capture investigation and captured the meeting between President 2/11/2016 – 702 Jacob Zuma and Adv. Madonsela. Public Protector CEO resignation raises questions The statement explains that, rather than laying charges against Adv. Madonsela, Adv. Mkhwebane had opened a This short article suggests that PP CEO Adv. Louisa Zondo’s case at the Brooklyn police station in , asking that resignation only three weeks after the new PP took office they investigate these alleged leaks to establish whether is the result of a lack of faith in Adv. Mkhwebane. The PP or not they breached section 7(2) of the Public Protector is therefore left with no other choice but to appoint a new Act. The decision to open a case was made as a result of CEO. complaints by the Presidency and the Office of the Speaker of the National Assembly. In addition, Adv. Mkhwebane 12/11/2016 – EYEWITNESS NEWS expresses her concern with the trust that the public has in Busisiwe Mkhwebane: Molefe’s resignation a her office if it is unable to safeguard evidence. loss to SA The statement further refers to a newspaper article based EWN reports that the PP has said people should not start on an alleged recording of a meeting on the state capture accusing those implicated in the state capture report of investigation between Adv. Madonsela and Economic being guilty until the matter has gone through a judicial Freedom Fighters leader . process. Commenting on Eskom CEO Brian Molefe’s decision to resign after allegations of corruption were made 28/11/2016 – Mail & Guardian in the above-mentioned report, the PP said that his decision Busisiwe Mkhwebane: There are no charges was a great loss for the public sector and that she hoped he against Madonsela would able to serve in other structures. She described his decision as ‘a loss for the country’. This article repeats the information contained in the above media statement by the Public Protector.

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30/11/2016 – Public Protector country. She also points out the high number of complaints Public Protector to commemorate 16 Days of regarding the Justice Department. Activism for No Violence against Women and 7/12/2016 – SABC News Children in Cape Town SABC has no board: Mkhwebane

This media statement announces the PP’s commemoration This article describes how Adv. Mkhwebane told the ad of 16 Days of Activism for No Violence Against Women hoc committee on the SABC that she believed the SABC and Children in Khayelitsha, Western Cape. Apart from currently had no board as there was no quorum. She the theme and practical arrangements, the PP announces also said that the SABC had failed to implement remedial that she will bring a team of investigators who will register action as directed by her office, turning to legal opinion complaints on site in order to bring the services of the PP and justifying the lack of remedial action rather than closer to the public. Complaints lodged by women and implementing it. She concludes that the PP’s report had children are said to be prioritised. never been taken seriously by the SABC.

1/12/2016 – EYEWITNESS NEWS 12/12/2016 – Public Protector Mkhwebane: I’m not shielding Zuma Military Ombud and Public Protector hold This article quotes Adv. Mkhwebane during the event in bilateral talks Khayelitsha announced above. The PP said that perceptions This media statement reports on a meeting between that she was somehow shielding President Jacob Zuma Adv. Mkhwebane and Military Ombud Lt Gen (Ret) were unjustified and that the PP’s office would hold the Temba Matanzima as a result of the memorandum of President accountable if and when necessary. She was understanding between the two institutions earlier in the quoted as saying: “Why would I shield the President? year. Both are quoted as saying that their two institutions If the President has committed any conduct or there’s a need to strengthen their working relationship in order to service failure, he will be investigated. I’m here to defend share best practices. and implement the Constitution.” She further said: “The Constitution provides for the right of every South African and 13/12/2016 – Polity.org.za my role is to protect the public and not the individual.” Public Protector pays courtesy call to Zuma 2/12/2016 – Public Protector This short article reports on the (first) meeting between Adv. Broadening access to her office top of Public Mkhwebane as PP and President Jacob Zuma. President Protector’s agenda Zuma reportedly congratulated Adv. Mkhwebane on her appointment and pledged his and Government’s support and In this media statement, Adv. Mkhwebane repeats her cooperation as she fulfils her constitutional responsibilities. intentions to expand and improve access to the services Adv. Mkhwebane thanked the President for the opportunity of her office, especially to members of the public located to meet and said she looked forward to constructive working on the fringes of society. She recaps her experiences in relations with Government. the above-mentioned event in Khayelitsha, saying locals had complained about service delivery, police conduct, 15/12/2016 – Huffington Post the processing of RDP applications and illegal electricity Exclusive: Public Protector Busisiwe Mkhwebane connections. has Madonsela’s chief of staff marched out 5/12/2016 – Public Protector This article starts with the story of Bonginkosi Dhlamini, Public Protector and Minister of Justice meet who was appointed chief of staff by the former PP, Adv. Madonsela. According to the article, Dhlamini was escorted This media statement describes the meeting between out of the PP’s office by the VIP protection detail because his Adv. Mkhwebane and Minister of Justice and Correctional presence was apparently interfering with Adv. Mkhwebane’s Services Michael Masutha, where the two discussed security. This came after the departure of the PP’s CEO and the enhancement of access to the services of the PP, the redeployment of Madonsela’s former personal assistant, cooperation and compliance with ongoing investigations and Busi Jele, and the only senior investigator who had worked remedial action of the PP. on the state capture report. Adv. Mkhwebane suggests making use of the magistrates’ Dhlamini explained that, from her first day at the office, Adv. courts to provide PP services in order to expand the 19 Mkhwebane had seemed unwilling to work with him and offices currently providing PP services throughout the others who had worked closely with Adv. Madonsela. He

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described how he had been told on Adv. Mkhwebane’s first predecessor were to be invited. In other emails, Dhlamini day in office that she did not need the team working with described Adv. Mkhwebane as heartless, unreasonable and Madonsela in the private office. Following this incident, cruel. He is reported to have threatened to go to Parliament he was moved out of Adv. Mkhwebane’s office, not given to give a protected disclosure about the goings-on at the work for two weeks and eventually demoted to a temporary PP’s office under Adv. Mkhwebane. position. When Adv. Mkhwebane eventually asked him to explain what he had done under Adv. Madonsela, he 20/12/2016 – Public Protector complied and she offered to pay him out for the remainder Public Protector disappointed at baseless of his contract. Dhlamini explained how he had been offered allegations in the media a year contract by Adv. Madonsela and promised a seven- year contract if and when he could prove good performance In this media statement Adv. Mkhwebane expresses her after the first year. The resulting fall-out between the two disappointment at the allegations made in the above and resulted in the bouncers removing him from the office. other articles that she had threatened to withdraw South Africa’s hosting of the recent African Ombudsman and Dhlamini described that the first meeting between Adv. Mediators Associations (AOMA) general assembly in Durban Madonsela and Adv. Mkhwebane had been fine, but alleged if her predecessor was invited. She rejects these claims as that Adv. Mkhwebane’s attitude had changed during the baseless and malicious. verbal handover. He described her as uninterested and ‘with a real attitude’. When he later approached Adv. Mkhwebane With regard to the staff issues, Adv. Mkhwebane states regarding staffing requirements and inquired whether she that it is common practice for a new head of an institution would like to keep Adv. Madonsela’s VIP protection unit, to appoint his or her private office staff. She compares the she was vehemently opposed and said ‘No, no, no! I don’t office of the PP to a ministry and refers to Adv. Madonsela, want those’. When asked, the PP’s office said that it was still who had also brought her own team of aides and redeployed exploring a new post for Dhlamini. those of her predecessor.

The remainder of the article is dedicated to other 15/01/2017 – Rapport questionable decisions and actions by Adv. Mkhwebane, : Eise kom many of which are mentioned above. The change from eNCA to ANN7; the lack of opposition to the interdicts This article reports on a preliminary report released by by President Zuma and Minister Van Rooyen; her praise the PP on the ABSA-Bankorp billions, but drafted by the for outgoing Eskom CEO Brian Molefe, who had been previous PP, Adv. Madonsela. The recommendation from implicated in the state capture report; and her claims of not Adv. Mkhwebane was that President Zuma look into laying charges against Adv. Madonsela but merely opening the possibilities of establishing a commission of inquiry a case regarding the leaking of audio recordings of Adv. into missing apartheid loot. Before that happens, the Madonsela and President Zuma. Reserve Bank has to take legal action against ABSA in order to reclaim up to R2,25 billion from which ABSA had 18/12/2016 – Citizen profited when it took over Bankorp in 1992. Although ‘Heartless’ Mkhwebane ‘hates’ Madonsela – Adv. Madonsela was unwilling to comment, there are no report indications that Adv. Mkhwebane made any alterations to the report. Adv. Madonsela merely indicated that she would Reporting on a string of emails made available by Dhlamini, have liked to discuss this report with her successor, but she the Citizen reports that Adv. Mkhwebane threatened to did not have time. As a result, the report was transferred to withdraw from the AOMA event described above if her paper.

12 Report on the Public Protector’s first 100 days in office Report

Conclusion Perhaps the most important conclusion to draw from the office, she seems somewhat out of touch with the public, above is that Adv. Mkhwebane has not really given us an some, if not most, of whom probably regarded the leaking opportunity to test her substantial work as Public Protector of the tapes to have been a necessary evil in an attempt at in her first 100 days in the office. Rather, her comments and transparency. Once more, it appeared as if she was doing the actions, alleged or not, have given the public an insight into President’s dirty work. her personality and, perhaps, a hint of what her substantial work as Public Protector will look like. The Eyewitness News article titled ‘Mkhwebane: I’m not shielding Zuma’ suggests that Adv. Mkhwebane is either From the above articles and media statements one would painfully unaware that she mostly has herself to blame for be inclined to think that Adv. Mkhwebane is making an the public’s perception of her, or that she is unwilling or unnecessary and quite frankly incomprehensible effort to unable to sufficiently change her behaviour in order to shake distance herself from her predecessor, Adv. Madonsela. that image. The public is more likely to measure her by her Incomprehensible, because Adv. Madonsela not only actions, rather than by her (hollow) words. Unfortunately, managed to make her office known to and almost famous her visit to President Zuma and the compliments exchanged with the public, but she also found her way into most there also did little to persuade the public that she was South Africans’ hearts and minds. To present oneself as the indeed aware or wary of the corruption crisis in Government. opposite thereof or, at the very least, distanced therefrom, would be to create unnecessary headwind before the start of To top all this, her conflict with one of the employees who the race. had been hired by Adv. Madonsela created further damage to her image when he leaked to the media Adv. Mkhwebane’s Despite honourable attempts to increase accessibility to her unwillingness to work with most of Adv. Madonsela’s office for those on the fringes of society, Adv. Mkhwebane staff. He further described her as cruel, heartless and has to remember that she serves the public at large and that unreasonable. the needs of those on the fringes do not necessarily reflect those of the rest of the public. She would do well to protect While she is struggling to rid herself of this negative image, her own image and that of her office for all and, even if these there is some hope for Adv. Mkhwebane: she has yet to are mere rumours, changing the TVs in the Public Protector’s provide us with a report initiated and performed either by her offices from eNCA to a channel owned by people implicated or under her supervision. The best thing for her right now in the state capture report will not do her image any good. is to focus on her job and provide South Africa and South Having said that, the possibility that she was in fact merely Africans with quality investigations and reports, thus ridding trying to provide her staff with a broader perspective should the country of corruption and maladministration and truly be commended, provided that ANN7 was not the preferred making a difference in people’s lives. If she can do that, the channel, as was reported in various media. public’s perception of her will soon be that of a true Public Protector. Until then, we remain cautious and we will monitor The reports and rumours did not end there, though. Her her every step. unwillingness to oppose both President Zuma and Minister Van Rooyen, however justified it might have been, left In the broader perspective, and somewhat beside the South Africans wondering whether she would be willing to point of this report, one could argue that the objective of make unpopular decisions later on in her career as Public the Office of the Public Protector as set out in the Protector. Her decision to praise Brian Molefe, who had Constitution is somewhat undone by the overwhelming been implicated in the state capture report, also seems majority of one party in Parliament. Whereas the like a deliberate move to distance herself from that report, Constitution prescribes that the Public Protector must which had been compiled by her predecessor. Once again, provide Parliament and Government with checks and the public’s perception of her was dented by the mere balances, the lack of balance in the division of seats in suggestion that she was not serious about the fight against Parliament means that the Public Protector can, in theory, government corruption. be a puppet of the majority party. Although one cannot decisively label Adv. Mkhwebane to have been a puppet Adv. Mkhwebane did not stop there. When accused of at the time of the writing of this report, the fact that the laying charges against her predecessor, she engaged in a objections by the largest opposition party made no difference semantic game, claiming that she had merely opened a to her appointment seems to conflict with the objective of case to investigate the leaking of audio tapes after having her office as set out in the Constitution. Nevertheless, we received complaints from the Presidency and the Office of can only wait and hope that she performs her duties as set the Speaker of the National Assembly. Although she claimed out in the Constitution – a document, if we are (made) to she had also done so to protect the trust of the public in her believe her, that is close to her heart.

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