For once, everyone seems to agree. A slew of court rulings against the public protector has demonstrated, in humiliatingly scathing judicial assessments, her unfitness for office.
All that is 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 Zuma/Gupta faction of the ANC that placed her in the job?
This week, following an application by the Democratic Alliance and the Council for the Advancement of the South African Constitution, High Court Judge Ronel Tolmay issued a judgment on Mkhwebane’s report on her investigation into the Vrede Dairy Farm Project.
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” of her constitutional duties or a “lack of understanding” of them. This failure to understand the law and the Constitution pointed either to “ineptitude or gross negligence”.
With due respect to Tolmay, the question is not whether Mkhwebane is simply useless or whether she is a political tool. It is possible, and on evidence likely, that she is both.
The protector’s office is one of the most important institutions established by the Constitution to “support and defend” democracy. For the advocate heading the office to be lambasted and have her report set aside as “unlawful, unconstitutional and invalid” would be crushing if it happened 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 she was unaware 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 is to lodge an appeal. Given her record of 100% failure when subject to judicial review, this might be another example of her ignorance of the law. Or it might be the so-called Stalingrad-strategy – to use state funds to interminably delay punishment. But the courts are tiring of frivolous appeals.
In the Absa case, the court indicated 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 costs order. 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’s another ANC cadre deployment and – until former president Jacob Zuma miscalculated with Thuli Madonsela – every protector has delivered the head-bobbing and arse-licking expected of them.
Madonsela has shown how the office of the public protector can be used to implement the noblest intentions of the constitution-drafters; Mkhwebane, the most base. When Mkhwebane is dumped, a new, non-partisan process must be put into place to select her successor.