JUDITH FEBRUARY: Busisiwe Mkhwebane threatens the rule of law in SA


We had an inkling that Public Protector Busisiwe Mkhwebane didn’t have a full grasp of her job, but we probably didn’t realise it was that bad until last year’s Constitutional Court judgment in the South African Reserve Bank (SARB) matter was handed down.

It was scathing. In that instance, the ConCourt found that Mkhwebane had made numerous “misstatements, like misrepresenting under oath”, “(failed) to disclose material meetings”, “obfuscated” and was not “frank” with the court.

It all painted a picture of a woman who is not only incompetent, is also dishonest and someone who should not be heading up a Constitutional body.

This week’s Pretoria High Court judgment in the so-called #CR17 campaign matter was an excoriating one from a full bench. The High court set aside the full report in which the Public Protector found that President Ramaphosa had deliberately misled Parliament when answering the DA’s Musi Maimane in relation to a R500,000 campaign donation. The Public Protector had also found “merit” in a suspicion of money laundering and that “such a scenario, when looked at carefully, creates a situation of the risk of some sort of state capture by those donating these moneys to the campaign”.

All her findings were set aside, however, and to add insult to injury. it also ordered punitive costs against her. The judgment is strewn with findings, which show that Mkwebane is unable to exercise the powers of her office. She has, the court said, “an inability to process the facts before her…in a logical and fair-minded manner”, she lacked jurisdiction to even investigate #CR17 donations and made a “material error of law”. She clearly seemed overly zealous to investigate the flow of funds within the #CR17 campaign, even if it was outside of her jurisdiction to do so. One wonders why?

If it was not before, then it must now be abundantly clear that this Public Protector is unfit for office. In terms of s194 of the Constitution, a Public Protector can be removed from office on the grounds of misconduct, incapacity or incompetence. There appears to be enough in the ConCourt judgment and this most recent #CR17 judgment alone to make out a case for misconduct as well as incompetence.

But as usual, the law is not a straight line and her removal may prove tricky. The Public Protector is accountable to the National Assembly and it is also the National Assembly that deals with the grave matter of the removal of a Public Protector.

In the two EFF cases heard before the ConCourt regarding the removal of a President in terms of s89 of the Constitution, the court found that certain rules had to be in place in terms of which Parliament was able to then embark on the s89 process. These rules were needed for a factual inquiry into such a removal. Since the requirements for removal of a President and that of a Public Protector are similar, rules were put in place in early December that dealt with the removal of the Public Protector.

The Speaker of Parliament, Thandi Modise, has given the go-ahead for the removal proceedings on the basis of “misconduct, incapacity or incompetence”. The process is understandably onerous as an independent panel is appointed to deal with prima facie evidence regarding incompetence, misconduct or incapacity. The matter may then be referred to a parliamentary committee. The Public Protector can only be removed if a motion is supported by a two-thirds majority of MPs in the National Assembly. Thereafter, the President removes the Public Protector in terms of s194 (3) (b) of the Constitution.

Already Mkhwebane threatened to take court action against any “unlawful” proceedings against her. That aside, removing the head of a constitutional body is difficult and that is appropriate. If it were easy, former President Zuma would have removed the previous Public Protector, Thuli Madonsela, immediately when she became inconvenient and pesky about Nkandla.

A two-thirds majority of the National Assembly adds up to 267 votes. Of course, the ANC holds 230 seats in Parliament and the DA 84, so those two parties would comfortably make the 267 mark and then some. It is though clear that the ANC is divided on the matter.

Many within the ANC support Mkhwebane - any surprise that Tony Yengeni led the charge in her defence on Twitter last year? ANC secretary-general, Ace Magashule, has also come out in Mkhwebane’s defence to protect her from cries of her incompetence. In addition, the EFF has come out in support of Mkhwebane and has said it will head to the ConCourt to appeal the latest judgment.

And so the battle lines will yet again fall between the factions of the ANC - those linked to the state capture project seem to have a vested interested in Mkhwebane remaining in office, while others understand that one cannot have a constitutional body headed up by a compromised individual who seems to be on a crusade against President Ramaphosa (and Public Enterprises Minister Pravin Gordhan), while ignoring the obvious corruption allegations against Magashule and Mosebenzi Zwane in the Estina Dairy matter.

The question is therefore whether the ANC is able to unite around a common position on the Public Protector? While Ramaphosa would no doubt wish to see the back of Mkhwebane, tactically he cannot be seen as trying to remove her because she is proving to be a noose around the neck of his Presidency. As an institutionalist, Ramaphosa will be well aware of the optics of such a move.

What is clear is that the longer Mkhwebane remains in her position, the greater the threat to the rule of law. She should thus be removed from office as swiftly as possible.

Mkhwebane famously ended one of her reports with a Biblical quote from Esther, “And so I will go to the King, which is against the law; and if I perish, I perish!”

She may well have been prescient then, albeit it not about her courage but rather for her slavish defence of the indefensible.

Judith February is based at the Institute for Security Studies and is also a Visiting Fellow at the Wits School of Governance. She is the author of 'Turning and turning: exploring the complexities of South Africa’s democracy' which is available. Follow her on Twitter: @judith_february