Mkhwebane’s troubles did not come from being stupid and incompetent

The seven-year running sore that was Busisiwe Mkhwebane’s tenure as the public protector has ended. The relief may be short-lived. With the likely appointment of her deputy, Kholeka Gcaleka, a new suppurating mess is about to be created.

The same ANC-dominated parliament that last year blocked an impeachment probe into President Cyril Ramaphosa’s Phala Phala scandal, on Monday voted for her impeachment by 318-43. By lunchtime on Tuesday, the normally sluggardly Ramaphosa had fired her.

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It was the culmination of a process – started by the Democratic Alliance against substantial resistance from the ANC and the Economic Freedom Fighters (EFF) – that took a foot-dragging two-and-a-half years and cost around R160 million.

It seems that despite being suspended early last year and now being fired for misconduct and incompetence, Mkhwebane will still receive a R10 million end-of-service gratuity.

Her legal team, headed by Dali Mpofu, deployed the same Stalingrad-style defence manoeuvres that have worked so well on behalf of former president Jacob Zuma. They were able to bill the state a cool R34 million. Mkhwebane has already announced that she will be challenging the impeachment in the courts.

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She will be joined in this by the EFF. It’s not clear how these new fronts in lawfare will be paid for. Both she and the EFF have terrible legal performance statistics. The EFF has had the humiliation of consistently losing in costs and damages, against the likes of AfriForum.

Mkhwebane had not only challenged and lost, all the way to the apex court, nine high court decisions setting aside her findings but, in some, she also had punitive personal cost orders made against her.

At issue, then, is not whether she should have been impeached but rather how she survived so long.

The answer to the first question is contained in the second. Mkhwebane was chosen as public protector because that institution – except for Thuli Madonsela – has for its entire existence been headed by people chosen not for their legal credentials, but rather for their alignment to the ANC.

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Mkhwebane’s troubles did not come from being stupid and incompetent but from being stupid and incompetent on behalf of the wrong camp.

When Zuma got the boot, to be replaced by Ramaphosa, she made the mistake of throwing in her lot with the former president and the radical economic transformation faction. The beginning of the end was when she targeted Public Enterprises Minister Pravin Gordhan over a mythical Sars “rogue unit” and Ramaphosa over campaign donations, both reports which were set aside by the courts.

The final straw came when she again took on Ramaphosa, this time over Phala Phala.

Mkhwebane’s supporters argue that the moves against her were politically motivated. They are absolutely correct. Like most of the top appointments made by the ANC to supposedly independent Chapter 9 institutions, the cadres are expected to toe the line.

With a few honourable exceptions, they are political stooges and should they threaten the dominant ANC faction, they can expect to be shown the exit.

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While Mkhwebane backed the wrong horse, her likely successor, deputy public protector Kholeka Gcaleka, is an altogether smarter cookie. Her recent report letting Ramaphosa off the Phala Phala hook was clearly based on political convenience.

Should the now perturbed opposition parties fail in their attempts to have the selection process started anew, Gcaleka seems to have a great career ahead of her. Of course, not so good for the democracy she’s supposed to defend.