ANALYSIS: Brutal battering for Mkhwebane as court gives her short shrift

2019-07-30 05:00
The Public Protector, Advocate Busisiwe Mkhwebane. (Photo Leon Sadiki)

The Public Protector, Advocate Busisiwe Mkhwebane. (Photo Leon Sadiki)

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It’s becoming increasingly clear that Advocate Busisiwe Mkhwebane, the Public Protector, is living on borrowed time.

She suffered her fourth major defeat in the country’s courts on Monday when Judge Sulet Potterill – who was castigated by EFF leader Julius Malema last week because she dared to be white – granted an interim interdict to Pravin Gordhan in the Gauteng High Court in Pretoria.

This means that the remedial action she ordered following the findings of her investigation into SARS’s investigative unit (that she and her interlopers like Malema and Tom Moyane insist on calling “rogue”) will not be implemented pending the full review of the report by the same court.

The EFF – and other actors in the increasingly visible fightback against the fightback against state capture – will soon have to find another battering ram, because Mkhwebane is looking worse for wear, and there’s still a raft of judgments coming, not least of which flowing from the campaign against Gordhan, but also those involving President Cyril Ramaphosa.

And, for good measure, she’s also started to investigate SARS commissioner Edward Kieswetter and the independent power producers’ programme, a pet peeve of disgraced Eskom executive Matshela Koko.

The problem for Mkhwebane and her supporters is that the decision whether or not to launch an investigation into her fitness for office will soon move from the political realm to the professional one. She has made too many fundamental errors in law and judgment that it is practically impossible for Parliament and the General Council of the Bar to ignore anymore.

In her judgment Potterill awarded every skirmish to Gordhan – much to the chagrin of the EFF, who all too predictably proceeded to attack the judge over the hue of her skin and opted to sidestep the fact that both Mkhwebane and their legal arguments were flawed.

Of the eight discernible arguments forwarded by Gordhan, Potterill agreed with all eight.

Mkhwebane didn’t advance compelling enough evidence to demonstrate the special circumstances needed to justify her investigation. The judge agreed, among other things, that there are grounds for review of the finding that Gordhan “willfully lied” to Parliament, that there’s no evidence of a “spying unit” like the EFF claimed and that there will be irreparable harm if the remedial action against Gordhan is implemented.

But more worryingly, the portents aren’t good for Mkhwebane and the EFF’s prospects for future success, no matter what the race or continents of origin of the judges and their ancestors are.

Potterill, in paragraph 46, slams the remedial action of the Public Protector as “vague, contradictory and/or nonsensical” and proceeds to explain why she says so. For example, she orders the national commissioner of police to investigate “the criminal conduct of Gordhan and others” for violation of section 209 of the Constitution and section 3 of the National Strategic Intelligence Act. But, the judge finds, “both sections do not create criminal offences”.

She rejects the arguments by the Public Protector and EFF’s legal teams that the interdict should not be granted because it will impair the functioning of the office and comes down to the interference by one arm of state in the affairs of another. This is because the interim interdict is not final and the fact that these types of orders are granted daily.

Mkhwebane and the EFF’s opposition to the application was “baseless” and they were “not serious” in attacking Gordhan’s arguments.

And to add insult to injury, in paragraph 62.4, the judge made a cost order against Mkhwebane and the EFF, both who are now racking up some seriously expensive legal bills (the EFF has for example forfeited hundreds of thousands of rands to Afrikaner rights group AfriForum, which surely grates).

Mkhwebane, if she hasn’t done so already, is fast losing all credibility in the courts. Three prominent High Court decisions and one by the Constitutional Court have compounded her woes, although the gravity of those quite possibly hasn’t registered with her. One court judgment urged her to do serious introspection, an admonishment which seems to have fallen by the wayside.

The tactic with Mkhwebane and her supporters seems to have been to launch a series of investigations into Ramaphosa and his allies, make the worst findings possible and try to impede the reform process.

With the granting of Monday’s interim interdict it has now become clear that both sides can play the expensive and time-consuming game of administrative justice.

And that there seems to be a vast difference between Twitter litigation and actual litigation. Because with the latter laws actually count.

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