Two of her reports have been set aside by the courts, and various judges voiced concerns with Mkhwebane’s conduct in what is one of the most important offices in our country.
After all, she holds the constitutional mandate to protect us - the public.
Judge Ronel Tolmay, last week said it must have been of great concern for Mkhwebane, given her constitutional duties, that Treasury had already found gross irregularities regarding the Vrede dairy farm project, yet she did nothing to address those irregularities.
The judge found the report to be unlawful, unconstitutional and invalid. In fact, the judge found Mkhwebane had failed in her duties under the Public Protection Act and the Constitution. She found Mkhwebane had acted irregularly when she simply ignored a report by National Treasury, which made damning findings regarding the Vrede/Estina project.
Her final report was a whitewash of the issues. And as a final recommendation, she suggested that Ace Magashule institute disciplinary steps against those implicated - although he himself was implicated.
Judge Tolmay commented that “when the public protector fails to discharge her mandate and duties, the strength of South Africa’s constitutional democracy is inevitably compromised and the public is left without the assistance of their constitutionally created guardian”.
Last year, Judge Cynthia Pretorius also commented on the matter which was before her at the time that “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”.
In setting aside Mkhwebane’s remedial action to change the Reserve Bank’s mandate, another senior judge, John Murphy, in 2017, also made scathing remarks regarding Mkhwebane’s conduct in this matter. “A dismissive and procedurally unfair approach by the public protector to important matters placed before her by prominent role players in the affairs of the state will tarnish her reputation and damage the legitimacy of her office," he said.
Water and Sanitation Minister Gugile Nkwinti, scored a first round victory earlier this month against Mkhwebane when she was ordered to keep her findings on him under wraps for now, pending a review application. He argued that the public protector did not grant him sufficient time to react to the report in which she made adverse findings against him regarding the purchase of a farm in Limpopo.
But all eyes will now be on the fight between Public Enterprises Minister Pravin Gordhan and former Sars head Oupa Magashula, who are challenging Mkhwebane’s findings against them.
This is regarding Gordhan’s authorisation of the early retirement of Ivan Pillay in August 2010. She directed President Cyril Ramaphosa to take disciplinary action in this regard.
Gordhan, Magashula and Pillay are set to instruct their legal teams this week to seek recourse. They disagree with her findings and are confident that they will find justice at court.
Mkhwebane, meanwhile, also appears to be concerned about the adverse findings made against her in the latest Estina judgment. She is considering appealing against it.
Perhaps our learned Constitutional Court justices will ultimately have the last say over who is right or wrong. Hopefully this will lead us to restore our confidence in this important office.