Public Protector Busisiwe Mkhwebane could face a flood of personal cost orders and a possible axing by parliament following the highest court in the land effectively calling her dishonest.
In a scathing ruling, albeit attached to a dissenting minority judgment, the Constitutional Court found that Mkhwebane lied under oath in the court proceedings challenging recommendations she made in her report on her probe into the early 1990s state bailout of Absa Bank.
Several of her subsequent reports have been challenged in court since the June 2017 publication.
Secretary of the Council for the Advancement of the Constitution of South Africa (Casac) Lawson Naidoo, who has long called for her removal, said this was a definitive judgment which left Mkhwebane with nowhere to hide.
“She has been found to have lied under oath. Parliament must now take urgent steps to remove her from office,” he said.
Casac was party to a Democratic Alliance (DA) bid to have a personal costs order granted against Mkhwebane in a separate matter in the Free State.
Experts believed the Constitutional Court judgment was the push the DA needed to win this matter and for the opposition party’s parliamentary bid to have her fitness to hold office reviewed.
Political analyst Ralph Mathekga said the apex court’s majority judgment had far-reaching effects on future matters emanating from the public protector’s office.
The court’s decision to uphold a high court ruling granting a personal costs order against Mkhwebane could mean others would seek similar relief, he added.
“Those challenging her reports may seek the same punitive order against her and it is very clear that she can no longer say that she is acting without fear,” said Mathekga.
Delivering the judgment, Justice Sisi Khampepe said it was disturbing that no explanation was made about why none of Mkhwebane’s meetings with President Jacob Zuma were disclosed in the final report.
Her explanations to the court of meetings she had with the State Security Agency on the same matter were described as late and “unintelligible”.
The court dismissed the SA Reserve Bank’s application for a declaratory order to find that Mkhwebane had abused her office while she undertook the investigation.
The Helen Suzman Foundation’s Anton van Dalton said the judgment gave ample grounds for an argument against her fitness to hold office.
“The grounds for removal of a public protector are misconduct, incapacity or incompetence,” he said.
The DA welcomed yesterday’s judgment, but added a caveat discouraging the negation of other reports of hers.
“A distinction must be drawn between the public protector and the office itself. Nobody can argue that the current incumbent is by any stretch of the imagination a suitable occupant. The DA does, however, believe that every report produced by the office of the public protector should still be judged on its own merits.”