ANALYSIS: 'Inept and negligent' Mkhwebane causing serious damage to her office

2019-08-16 12:29
Busisiwe Mkhwebane

Busisiwe Mkhwebane (Felix Dlangamandla)

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"The Public Protector has immense power, but with that power comes great responsibility. If she fails, as she did in this case (to execute her duties), she must take full responsibility." – Judge Ronel Tolmay from the Gauteng High Court, in paragraph 28 of the cost order judgment.

The credibility and reputation of Public Protector Busisiwe Mkhwebane was on Thursday dealt another blow when the Gauteng High Court made a personal costs order against her – the second in as many weeks.

Last week the Constitutional Court agreed that Mkhwebane should be held personally liable for a part of the costs related to the SA Reserve Bank matter after the lower court previously found the same. On Thursday the High Court concurred with the country's apex court in the Estina dairy matter and declared that Mkhwebane "failed completely to execute her constitutional duties".

She will now have to fork out hundreds of thousands of rands from her own pocket in terms of both matters, SARB and Estina.

Thursday's judgment is the latest in a string of high-profile defeats for the Public Protector, all of which have not only diminished her own reputation, but that of the office that she occupies. Under her predecessor – whose tenure was not without its faults or controversy – the Public Protector assumed the role that the authors of the Constitution envisaged but which was not realised under the first two occupants of the office.

Thuli Madonsela, who was succeeded by Mkhwebane, was visibly and fiercely independent and effectively challenged political authority. The Constitutional Court twice supported her convictions in matters that had far-reaching consequences for the country's democracy, first in the Nkandla matter and secondly in the state capture matter.

Mkhwebane though has – with the support of the EFF – entered the political arena and challenged political opponents even though a succession of courts have signalled warnings about legal strategy and judgement.

Tolmay's decision on Thursday is the continuation of a theme around Mkhwebane that has now become the standard narrative: she is incompetent, does not understand her role and flouts laws.

In both the recent Constitutional Court judgment as well as the High Court judgment the role and importance of the Public Protector's office in the democratic architecture is explained and reinforced. The importance of this role, the courts explained, is that there is a higher burden on her office to act in good faith and in accordance with the law.

If the Public Protector does not, the penalty should be severe because the integrity of that office must be protected.

Tolmay did not hold back in her judgment.

"The failures and dereliction of duty by the Public Protector in the Estina matter are manifold. They speak to her failure to execute her duties in terms of the Constitution and the Public Protector Act. In my view her conduct in this matter is far worse, and more lamentable, than set out in the Reserve Bank matter," Tolmay says.

This is so because the SARB – as well as Absa – had the means to challenge her report and to ensure justice. But in the Estina matter those who were prejudiced were the poor and vulnerable – the very people she is supposed to defend and champion.

Mkhwebane, who has demonstrated a singular focus on President Cyril Ramaphosa and Public Enterprises Minister Pravin Gordhan, "turned a blind eye, did not consult with them and did not investigate the numerous irregularities that occurred…"

Those irregularities refer to the conduct of Ace Magashule's provincial government in the Free State.

"Her conduct during the entire investigation constitutes gross negligence. She failed completely to execute her constitutional duties…" Tolmay finds.

Mkhwebane argued her limited investigation is due to limited resources. But the court found her arguments have no merit and that she attempted to "defend the indefensible".

"Her inability to comprehend and accept the inappropriateness of her proposed remedial action constitutes ineptitude… the Public Protector failed the people of this country in the way she dealt with the investigation of the Estina dairy project."

And even though she argued that her office did not have enough resources to conduct a proper investigation, she still engaged to separate sets of legal counsel to argue her case in the country's courts. This cost a lot of money "and showed a total disregard for the taxpayers".

The court – not for the first time – has found Mkhwebane failed in her duties in terms of the law, that her conduct constitutes gross negligence and ineptitude and that she disregards taxpayers.

She has now caused significant damage to the office of the Public Protector. A full parliamentary inquiry cannot be far off.

Read more on:    busisiwe mkhwebane  |  pravin gordhan  |  cyril ramaphosa  |  public protector
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