No more fighting ‘losing battles’ on taxpayers’ dime for Mkhwebane

Suspended Public Protector Busisiwe Mkhwebane is now on her own, without her office’s backing on some of her cases following the reversal of an appeal application, say experts.

Acting Public Protector Kholeka Gcaleka said the Office of the Public Protector “will not fund Mkhwebane’s appeal against the recent decision of the WCHC [Western Cape High Court in Cape Town], where she sought to obtain an urgent interdict to prevent her suspension (Part A); the rescission application pending before the Constitutional Court (Part B) of the application in the WCHC; and the defamation of character lawsuit, which is a private matter against the Democratic Alliance”.

ALSO READ: Mkhwebane’s bid to reverse suspension hits a snag after her office withdraws court application

But Gcaleka said the office of the public protector will fund Mkhwebane’s challenge of her suspension; her defence during the impeachment proceedings; and the perjury criminal case.

Mkhwebane was informed about the decisions on Monday.

Legal expert Dr Llewellyn Curlewis said the decision by Gcaleka to withdraw Mkhwebane’s application for leave to appeal may just put an end to her bid to halt her impeachment proceedings and end her suspension by President Cyril Ramaphosa.

“The instructions to proceed with the matter are now being revoked, so no one can force her to stop her approach to the court. But if she can’t afford it then…” he added.

“So, if she wants to pursue the matter – remember she’s applying to the court to set aside the ruling that she should be impeached – then she will have to foot her own bill.”

Curlewis said although Mkhwebane was well within her rights to challenge the suspension from an administrative point of view, he was not convinced Gcaleka would agree, as she was not in favour of pursuing the matter any further, or paying further legal fees on behalf of the state to essentially “feed Mkhwebane’s personal vendetta”.

READ MORE: Timeline: How Mkhwebane’s impeachment will unfold

“In the meantime, pending that administrative request from her, I can assure you that the matter will stand still and she cannot afford any further delays in this matter because there’s already an impeachment procedure against her,” Curlewis said.

“So, she’s either going to do this on her own, pay it on her own or, in light of the latest developments, walk away, just let bygones be bygones and settle for what has happened to her.”

These were “within the PPSA’s [Office of the Public Protector] fiscal governance framework, considering that the Public Finance Management Act and Treasury regulations require the PPSA accounting officer to ensure sufficient funding for any expenditure that the institution is required to cover and that any estimated legal costs are reasonable and budgeted for”.

Political analyst Ralph Mathekga said things were not looking good for Mkhwebane, as this could mean she has not only lost the legal battle but also her position as the public protector, with the PPSA distancing itself from her.

“She no longer has a strong leg to stand on insisting on those cases that she actually undertook. “She’s suspended, she’s out, and she cannot fight it,” he said.

“And the office, the platform she used, [is] now saying, no, this platform which you have abused is no longer available.

ALSO READ: Mkhwebane remains suspended as Ramaphosa stands by his decision

“The Public Protector’s Office is retrospectively saying ‘we are not going to be part of everything else that you’ve started’.

“This whole thing just makes you wonder what else will be overturned going forward, because there’s a possibility they might decide not to even pursue the provisions which came from that office, that some have attributed to her personally.”

Organisation Undoing Tax Abuse (Outa) chief executive Wayne Duvenage said it was about time the public sector’s office stood up for itself and refused to be abused for individual purposes of the public protector, while using taxpayers’ money to fight losing battles.

“The Public Protector’s Office is saying, ‘you will not use this office as your springboard into bringing challenges which we see as frivolous and what you are doing and not what the office is doing’.”