Protector Busi Mkhwebane under fire for altered Vrede report. FILE PHOTO: ANA
Protector Busi Mkhwebane under fire for altered Vrede report. FILE PHOTO: ANA

Protect us from the public protector

By WILLIAM SAUNDERSON-MEYER - JAUNDICED EYE Time of article published Jun 16, 2018

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Let’s applaud the latest report from the public protector. In a harshly punitive finding, she has declared that Western Cape Premier Helen Zille violated the Constitution of the Republic with “an incitement to imminent violence”.

Advocate Busiswe Mkhwebane ruled that Zille had failed to uphold her oath of office, divided society on racial grounds, and acted in a manner inconsistent with integrity of office.

The Speaker of the Western Cape legislature must act against Zille within 30 days; and the ANC in this, the only province not governed by it, claims to be jubilant.

They shouldn’t be. Mkhwebane’s report should be cheered not because it is correct, but because it is so ludicrous in law and so partisan that in this bizarre finding she may at last have gone too far, finally exhausting her waning parliamentary support.

Mkhwebane’s 20-month tenure has been a disaster.

She has stumbled from one inept and legally controversial finding to another, but she has now reached what is surely the nadir of her lacklustre career. Her exit must be imminent.

If she goes, the career-crushing blow will have come from a simple tweet. After a visit to Singapore, Zille last year tweeted that not every aspect of colonialism had been entirely bad. “Think of our independent judiciary, transport infrastructure, piped water, etc,” she wrote.

It’s a statement that, while politically unpopular, is academically unremarkable. While it was unwise to tackle in 140 characters a subject with such ramifications of oppression and emotional pain, Zille’s assertion is part of an ongoing historical debate that has scholars, including people of colour, arguing both sides of that contention.

But it was also manna for political agents provocateur and the trolls of “woke” Twitter. There was a firestorm of social media outrage, assiduously fanned by Zille’s opponents, including rivals within her own DA, and gleefully abetted by a swathe of left wing self-professed “public intellectuals”.

The substance of Mkhwebane’s finding - which appropriately enough has been scanned onto the public protector website upside down - is thinner and more transparent than the gruel in a Dickensian alms-house. The poverty of intellect is cruelly summed up by constitutional law expert Professor Pierre de Vos.

The report is “so legally misguided that it is difficult to believe that a qualified lawyer wrote it in good faith She has little understanding of her own powers and lacks even a very basic knowledge of the Constitution”.

De Vos, whose loathing for Zille has always oozed like sweat from his writing, is clearly feeling frustrated. “Some of us who have been highly critical of (Zille’s) tweets, will now have to point out that the report is a legal nonsense and that it will be declared irrational and set aside by the courts.”

Mkhwebane’s finding is so bizarre as to be genuinely funny. Less amusing is that her performance as public protector, replacing the doughty and respected Advocate Thuli Madonsela, has been consistently woeful.

Of her 50 investigations, 10 are or were under judicial review. When she ordered the Reserve Bank to change its constitutional mandate, the high court not only set the finding aside, but imposed the unusual sanction of ordering her personally to pay costs.

In reversing her finding on the apartheid-era bailout of Bankorp, the high court savaged her for lacking impartiality. “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 a higher standard is expected of her.”

To expect a “higher standard” from Mkhwebane is a forlorn hope. She is just not up to it.

It is instructive to revisit her curriculum vitae, still on the parliamentary website from her 2016 application for the public protector post.

As well as being a hodge-podge of strange grammar and punctuation - “Nationality: African, gender: Female”, - it paints, at best, a picture of an unremarkable civil servant.

She did a BProc LLB at the University of the North, now the University of Limpopo, and one South Africa’s weakest universities. She lists as one of her career achievements that in 2009, while working for Home Affairs, she was “one of the few Senior Manager to be awarded merit award” (sic).

Mkhwebane has never been anything more than an ANC shill, torturing and contorting her “investigations” to fit her findings into a template that will please her political masters.

She was shoehorned into the job by the ANC - with the complicity of the EFF, who voted for her simply because of her race - as a trusted balm to ease the stings inflicted on former president Jacob Zuma and his corrupt cronies by her principled predecessor.

The usefulness of the biddable Mkhwebane to the Zuma ANC is now, under President Cyril Ramaphosa, a career disadvantage. And her professional shortcomings and political biases are now so obvious as to be cringingly embarrassing to the ANC.

Mkhwebane wants to employ a “special adviser”, at an annual R1.2million, to replace the voluntary independent panel that is currently available to assist. Perhaps the new appointee could start by advising Mkhwebane on drafting her letter of resignation.

* Follow WSM on Twitter @TheJaundicedEye

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