Mkhwebane says courts treat her powers differently to when Madonsela had them

Public Protector Busisiwe Mkhwebane says the legal position regarding the powers her office enjoys has “radically changed”.

Addressing an audience at a leadership dialogue at the University of Johannesburg (UJ) on Friday evening, Mkhwebane spoke on issues related to her office, including challenges she said she had faced. She said the judiciary had changed its position on the powers of her office since the years in which her predecessor, Thuli Madonsela, had been in charge.

She emphasised that her words should not be seen as disrespect for the courts.

She started off with the infamous Nkandla judgement, saying “the Constitutional Court held that the remedial action dispensed by the Public Protector is binding until or unless set aside by a court of law; [further], the Public Protector can direct the manner of implantation of the remedial action, and that compliance was not optional”.

She said, in the State of Capture report judgment, the High Court had concluded that the Public Protector’s office could direct a state functionary to exercise powers only which were within the exclusive purview of that functionary.

“The court thus concluded that the Public Protector can direct the president to establish a commission of inquiry. In the report that led to the judgment, the Public Protector had directed the president, Parliament and the NPA to take certain actions.

“Furthermore, the court refused to grant an interdict to the president, citing that granting such an order will result in the unwarranted interference with an exercise of a statutory power.”

She said that, when she took over the office in 2017, the courts drifted away from these principles.

“As things stand now, for anyone to successfully challenge the powers of the Public Protector, all they need to do is show up to the court and they will be granted the relief they seek. This is how radically the legal position regarding the Public Protector has changed,” she said.

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