T"he Constitutional Court has dismissed Public Protector Busisiwe Mkhwebane’s appeal against the high court ruling that she be held personally liable for 15% of the SA Reserve Bank's legal costs in the Absa/Bankorp saga. Picture: Dimpho Maja/African News Agency (ANA)

Johannesburg - Are the Public Protector Busisiwe Mkhwebane’s days in office numbered? This is one of the questions many South Africans are asking themselves after another scathing blow at the Constitutional Court on Monday. 

Two of the Public Protector’s high profile reports have been set aside in the courts, namely the matter regarding the Vrede Dairy Farm and the matter regarding the South African Reserve Bank lifeboat, which involved Absa’s acquisition of Bankcorp.  

A number of other reports by Mkhwebane are currently under review in the courts. Among of the more notable legal battles are her ongoing feuds with Public Enterprises Minister Pravin Gordhan and President Cyril Ramaphosa. 

Below, we take a look at some of the public protector’s reports which have been set aside by the South African courts. 

1. Vrede Dairy Farm 

In May 2019, the North Gauteng High Court ruled that Mkhwebane's report be set aside and declared unlawful, unconstitutional and invalid. In its scathing judgment, Judge Ronel Tomal said the public protector had failed in her duties under the Public Protection Act and the Constitution.It was claimed that more than R220m was poured into the project, while only R2m was spent on the actual farm.  

The court found that her decision to limit the scope of her investigation, which ultimately exonerated the likes of Magashule, was irrational as it side stepped all the crucial aspects regarding the complaints and led to a failure on her part to execute her constitutional duty.

On narrowing her investigation, the Judge was scathing and said since Treasury had found gross irregularities and non-compliance with procurement law by the department and the provincial government. 

“This should have been of great concern to the PP given her constitutional duties. She should have investigated the failure of the department and the provincial government and she should have addressed those irregularities and failure to comply with procurement procedures. The excuse of financial constraints preventing her from investigating certain aspects, being an impediment… cannot explain her failure to act decisively and in accordance with the powers afforded to her”.

2. SARB Lifeboat 

In February last year, Mkhwebane's controversial CIEX report was set aside by the High Court in Pretoria which ordered that she pay 15% of the legal bill to the South African Reserve Bank from her own pocket, with the remaining 85% to be paid by her by her office. 

Her report, released in July 2017, had caused an uproar as it called for Parliament to amend the Constitution and change the SARB’s mandate. 

Her report had also ordered that the Absa bank should pay back R1.125bn that it received from the SARB in the 90s. 

The court at the time in a scathing judgment, said: “In the matter before us it transpired that the Public Protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice.” 

The court said it was necessary to show its displeasure with the unacceptable way in which she conducted her investigation as well as her persistence to oppose the applications before the court, “to the end.”

The North Gauteng High Court also dismissed her application for leave to appeal. She then petitioned the Constitutional Court via direct access, which was granted last July.

3. ConCourt appeal against costs order

On Monday, the Constitutional Court dealt Mkhwebane a major blow when it upheld the North Gauteng High Court’s decision and ordered that she pay the 15% punitive personal cost order as directed by the court. The amount is estimated at almost R900 000, according to reports. 

A majority judgment of the highest court in the land found that Mkhwebane had not acted in good faith, lied under oath, had a flawed investigative model and was dishonest. 

“Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands”.

The public protector has a number of high profile cases before the court, notably, against recent reports relating to Gordhan and Ramaphosa

High profile cases pending before the courts:

1. Gordhan, Pillay vs PP - Rogue Unit report 

Gordhan approached the courts to interdict the Public Protector’s remedial action that President Ramaphosa discipline him, within 30 days, after her report found that Gordhan had a role in the establishment of the ‘rogue unit’ at SARS. She said the unit was unlawful and said Gordhan had violated the Constitution. 

Gordhan lodged an urgent application to suspend and interdict the remedial orders by the Public Protector, citing "improper motives" on her part.

The matter is being heard in court on Tuesday.

2. Gordhan vs PP - Ivan Pillay's Impoper Early Retirement report

Just days before Ramaphosa announced his Cabinet for the Sixth Administration, Mkhwebane found against Gordhan with regards to Pillay’s early retirement at SARS. 

Pillay was allowed to retire at Sars and walk away with a R4m retirement package, but was re-employed on a contractual basis on a similar salary and in the same position as deputy commissioner. 

Mkhwebane found that the minister’s approval of the early retirement amounted to misconduct.

Her report directed Ramaphosa to take disciplinary measures against Gordhan. 

Gordhan and Pillay have approached the courts to have the report set aside. 

3. Ramaphosa vs PP - Bosasa report

Last Friday, Mkhwebane dealt Ramaphosa a devastating blow when she released her report which was looking into the matter of a R500 000 donation to the president during his election campaign to become ANC President in December 2017. 

Ramaphosa received a R500 000 donation from Bosasa boss Gavin Watson. 

Mkhwebane found that Ramaphosa had deliberately misled Parliament during a Q&A when DA leader Mmusi Maimane asked him about the donation. She also found the president had violated the executive ethics code by not declaring donations. 

Ramaphosa announced on Sunday that he would be approaching the courts on urgent basis, to have the public protector’s report set aside. He also publicly released his submissions to the public protector’s office. 

He said on Sunday: “It should be a matter of concern for all South Africans that an office of such Constitutional consequence as that of the Public Protector should make findings of such a nature against the Head of State.

“It is therefore essential – as it should be in all investigations – that such findings are based on fact, that they have a sound legal basis, that they are rational and that they have been arrived at through a fair, impartial and lawful process.

“Unfortunately, the report released by the Public Protector fails to satisfy these crucial requirements. After careful study, I have concluded that the report is fundamentally and irretrievably flawed. This is strongly confirmed by my legal representatives. The report contains numerous factual inaccuracies of a material nature. The findings are wrong in law, are irrational and, in some instances, exceed the scope of the powers of the Public Protector,” he said.

The public protector has also been accused of being a key cog in what is being termed a state capture fightback campaign, a movement of the wounded which is reportedly sympathetic to former president Jacob Zuma’s faction of the ruling ANC and is linked closely with party secretary general Ace Magashule. 

The SACP, the DA and a number of civil society groupings are calling for Mkhwebane to be fired by Parliament. 

The DA last month instituted proceedings for Parliament to begin the process of recalling Mkhwebane as the head of the Chapter 9 institution. 

IOL