Mkhwebane: Tool, spy or ordained protector?

2019-06-14 06:00
Public Protector, Advocate Busisiwe Mkhwebane releases reports on various investigations during a media briefing. (Photo by Gallo Images / Phill Magakoe)

Public Protector, Advocate Busisiwe Mkhwebane releases reports on various investigations during a media briefing. (Photo by Gallo Images / Phill Magakoe)

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"Even if she was Zuma's preferred candidate, he will not be there at some point… If she tries any shenanigans, the institution will expose her for what she is." – EFF leader Julius Malema, ad-hoc committee on appointment of the Public Protector, 24 August 2016.

In late August 2016, five members of the ANC's top six met at Luthuli House one Monday.

Part of their agenda that day was to hear feedback from ANC MPs part of the parliamentary ad-hoc committee established to appoint a new Public Protector.

Now former ANC MP Dr Makhosi Khoza and backbencher Bongani Bongo arrived to deliver the verdict – Busisiwe Joyce Mkhwebane was the chosen one.

President Jacob Zuma leapt to his feet, and effectively exclaimed "No, then we have a candidate" and declared the process complete.

As a result, other members of the top six did not ask Khoza or Bongo any questions.

If anyone in the room was taken aback by Zuma's reaction, they did not show it.

But one person who was in the room and who wished not to be named remembers thinking "Oh my God".

Appointment process 'fair and square'

The outspoken Khoza, who chaired the ad-hoc committee in 2016, told News24 this week the process had been "very good."

"It was the first time it was done so publicly," she explained. All the committee meetings and the all-important interviews were broadcast live.

She did not wish to be drawn into detail about the top six meeting.

News24 spoke to a number of MPs involved in the interviews, and the general consensus was that the process was run fairly and transparently. The nominations were submitted by the public. In the end, the committee, which was made up of proportional representatives from all political parties, settled on Mkhwebane.

The committee's report nominating her was tabled on 7 September before the National Assembly, which voted overwhelmingly in support of the nomination: 263 to 79, with one abstention. Zuma signed off on the appointment in early October 2016, and Mkhwebane took office the same month.

Bongo, a member of the committee at the time and former state security minister, told News24 on Wednesday that "he [Zuma] definitely did not know her [Mkhwebane], believe me".

Zuma was asked if he recalled the meeting at Luthuli house, and whether he instructed any member of his staff to submit Mkhwebane's name for consideration.

Through his spokesperson, Zuma said the appointment process was transparent. 

"Former President Zuma rejects the insinuation that Advocate Mkhwebane's appointment was somehow engineered by himself as President of the ANC and the Republic."

Asked about the feedback meeting with the ANC top six, Bongo denied that Zuma showed any reaction when it was announced Mkhwebane would be nominated.

The process? "It was fair and square," he said.

Several MPs confirmed that it was Professor Christian Msimang, an IFP MP, who pushed strongly for Mkhwebane to be included in the final shortlist of five candidates, despite protestations that stronger, more experienced candidates existed. An ANC MP said they remembered feeling uneasy about Msimang's move, and was left wondering whether his KZN roots played a role in his choice for the shortlist. Msimang was not immediately available for comment.

The ANC had up until that point openly favoured high court Judge Siraj Desai. But Desai's interview had been nothing short of a fiasco. Mkhwebane on the other hand, impressed many. She was articulate while being grilled. She was soft spoken, but forceful. She never lost her temper. She remembered every MP's name.

New suspicions are rising that Mkhwebane's appointment may have been a carefully constructed game of political chess. Little evidence exists of this, except for recommendations made in Mkhwebane's Public Protector reports, which have come under increasing fire for their perceived political slant. But at the time, there was just one small blot on Mkhwebane's record. She was employed as an analyst at the State Security Agency (SSA); a spy, by any other name.

At the time, when questioned by DA MP Glynnis Breytenbach about her role as an analyst at the SSA, and whether this was not a demotion from her previous post as a director in the department of home affairs, Mkhwebane was casual.

"No, it's not a demotion," she told MPs during her interview. "It's a different kind of expertise or experience. Going to work at the SSA, is to make sure we protect the Constitution."

Spy claims never substantiated

According to Khoza, allegations about Mkhwebane being a spy were never substantiated by the DA MPs Breytenbach and Werner Horn, who had raised concerns with her as the chairperson at the time. The DA eventually declined to support Mkhwebane's nomination, and Breytenbach made it clear it was due to her links with the SSA. She also told the House at the time that Mkhwebane was "by no means the best candidate" and she had been "illogically preferred over other candidates".

Khoza said it was only much later, when Mkhwebane started to come under fire for her controversial Absa/Bankorp investigation findings that she began to wonder.

"If you have judges making findings on the competency of someone to hold office… I was becoming increasingly worried that she [Mkhwebane] was getting involved in the political space. It was worrying me that she was now coming with issues that were defeated during internal ANC debates."

Khoza was referencing the issue of changes to the South African Reserve Bank's mandate, that Mkhwebane had recommended in a June 2017 report on apartheid-era bailout of Bankorp, now Absa.

Khoza also referenced Mkhwebane's habit of seemingly targeting ANC leaders who were perceived to be more ethical than others, such as Pravin Gordhan.

"I am not saying there is nothing there [with Gordhan]... but it is worrying. As politicians, we are not necessarily legal gurus. I don't think we paid enough attention to information that was coming to us. I think it is important that we should maybe have had a panel of legal experts, that could have tested key competencies," Khoza said.

Courts find against Mkhwebane

Malema's words in August 2016 turned out to be prophetic.

Setting aside the Public Protector's report into the Estina dairy matter on 20 May 2019, Judge Ronel Tolmay in the North Gauteng High Court said: "When the public protector fails to discharge her mandate and duties, the strength of South Africa's constitutional democracy is inevitably compromised and the public is left without the assistance of their constitutionally created guardian. It means that a vital constitutional check against abuse of power is lost." 

Mkhwebane completely left out the role of political players her report on the Estina dairy farm debacle, sparking a court challenge. Ace Magashule and Mosebenzi Zwane, known Gupta-linked politicians seen to be aligned to the Zuma faction in the ANC, were essentially absolved.

"In the matter before us it transpired that the public protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice," Judge Cynthia Pretorius found in the North Gauteng High Court on 16 February 2018, setting aside the Public Protector's report into the Absa/Bankorp/SARB matter.

Pretorius also ordered that Mkhwebane pay 15% of SARB's legal costs in her personal capacity, some R900 000.

In recent weeks Gordhan filed a review application against Mkhwebane's report on former SA Revenue Service deputy commissioner Ivan Pillay's early pension payout and reappointment, in which she found Gordhan had violated the Constitution. She in turn indicated notices were sent to Gordhan indicating adverse findings against him were imminent in another report, this time about the establishment of the so-called "rogue unit" at SARS.

In the past few days it has emerged that Mkhwebane has found against President Cyril Ramaphosa on the Bosasa matter, giving her critics more ammunition to claim she is operating under the guise of politics. The complainant in the Bosasa matter, the DA, is seeking to have a motion heard as soon as Parliament convenes this year to see Mkhwebane removed from office. But it is Mkhwebane's battle with the SARB that is likely posing the biggest threat to her continued tenure as Public Protector.

In November 2018 her appeal of Pretorius' ruling was heard by the Constitutional Court, but with an added caveat. The SARB filed a cross appeal, asking the ConCourt to declare that she abused her office during the investigation. Her crime? She consulted President Zuma's legal adviser and the SSA days before releasing her report, and discussed the SARB mandate change.

If the grapevine is to be trusted, the court's judgment will be handed down in the coming days. It will be Parliament or the Constitutional Court that decides Mkhwebane's fate despite her claims that only God could remove her.

*Mkhwebane did not respond to a request to be interviewed for this story.

Read more on:    jacob zuma  |  busisi­we mkhwebane  |  makhosi khoza  |  public protector

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