Politics / 25 May 2019, 10:00am / WILLIAM SAUNDERSON-MEYER
For once, everyone seems to agree. A slew of court rulings against the public protector has demonstrated, in humiliatingly scathing judicial assessments, how unfit she is for office.
The only thing at issue is a credible explanation for Busisiwe Mkhwebane’s hopelessly flawed rulings.
Do they stem from stupidity and ignorance or are they the calculated outcome of her political allegiance to the embattled Zuma-Gupta faction of the ANC that placed her in the job?
This week, following an application by the DA and the Council for the Advancement of the South African Constitution, High Court Judge Ronel Tolmay issued her judgment on Mkhwebane’s report on her investigation into the Vrede Dairy Farm Project.
The Gupta-linked project saw the theft of around R220million intended to set up black farmers. In a searing judgment. Judge Tolmay writes that Mkhwebane’s failures and omissions in the investigation were inexplicable unless they were done with “some ulterior purpose”.
There was either “a blatant disregard” for her constitutional duties or a “concerning lack of understanding” of them. This failure to understand the law and the Constitution pointed either to “ineptitude or gross negligence”.
Judge Tolmay’s judgment is worth reading, alone, for its tone of barely contained judicial impatience.
But with due respect to her, the question is not whether Mkhwebane is simply useless or a political tool.
It is possible and, on the evidence, likely that she is both. The public protector, along with the SA Human Rights Commission, is one of the most important institutions established by the Constitution to “support and defend” democracy. Accountable only to the courts and Parliament, it has the power to investigate virtually anything or anyone, and then to order other state agencies such as the police and the National Prosecuting Authority to act on its findings.
For the advocate heading the office to be lambasted so thoroughly and have her report set aside as “unlawful, unconstitutional and invalid” would be crushing if it happened only once in a career. But for Mkhwebane, this is the third major reversal in just two years.
In the SA Reserve Bank matter, she eventually had to concede that she was unaware that she did not have the power to order Parliament to amend the Constitution. In the other, regarding Absa, the court found she did not comprehend that she had an obligation to be “objective, honest and to deal with matters according to the law”.
Mkhwebane’s defiant response to what she describes as the “astonishing” Vrede judgment is to lodge an appeal. Given her record of 100% failure when subject to judicial review, this may be yet another example of her ignorance of the law.
Or it might be the so-called Stalingrad strategy that is much favoured by the state capture faction of government: use state funds to interminably delay punishment.
Mkhwebane should be circumspect. The courts are becoming tired of frivolous appeals.
In the Absa case, the court took the rare step of indicating its displeasure at her behaviour by making her personally accountable for some of the legal costs. If she appeals the Vrede case on flimsy grounds and loses, she may well face another cost order against her in her personal capacity.
Mkhwebane is a disgrace to the law and an embarrassment to the country. But we should not forget that she is merely fulfilling the unwritten part of her employment contract.
The public protector is appointed by the president. It is yet another ANC cadre deployment and - until President Jacob Zuma miscalculated spectacularly with Thuli Madonsela - every protector has delivered the head-bobbing and arse-licking expected of them.
With Mkhwebane, the appointment process for the first time included public hearings, but again, the final decision was down to the ANC majority on the committee, abetted by the EFF.
Madonsela has shown how the Office of the Public Protector can be used to implement the noblest intentions of the Constitution-drafters; Makhwebane, the most base.
When Mkhwebane is dumped, a new, non-partisan process must be put in place to select her successor.
* Follow WSM on Twitter @TheJaundicedEye
** The views expressed here are not necessarily those of Independent Media.