Guest Column

The DA's case for the Public Protector and against Busisiwe Mkhwebane

2019-08-01 05:00
Advocate Busisiwe Mkhwebane. Photo: Felix Dlangamandla

Advocate Busisiwe Mkhwebane. Photo: Felix Dlangamandla

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Nothing has changed as far as the constitutional mandate of the Public Protector are concerned. The office is still “one of the most invaluable constitutional gifts to our nation,” and the DA will continue to refer complaints to it, writes John Steenhuisen.

In 2016, when Parliament voted to appoint Advocate Busisiwe Mkhwebane to the position of Public Protector, the DA was the only party to oppose this appointment. For the last three years, we held firm in our conviction that she is not a suitable individual to occupy the office of Public Protector.

Yesterday’s revelation that the HSBC had flagged a payment allegedly made to Mkhwebane in 2014 by a Hong Kong company reported to be linked to money laundering schemes of the Gupta family and their associates or associated companies is merely the cherry on top of a long list of acts by Mkhwebane that supports our contention that she is not a fit and proper Public Protector.

When delivering the 2016 landmark Constitutional Court judgment that confirmed that findings and remedial action by the Public Protector are binding, Chief Justice Mogoeng Moegoeng took some time to consider the constitutional importance of the office of the Public Protector.

In remarkably beautiful turns of phrase, the Chief Justice described the institution of the Public Protector as “one of the most invaluable constitutional gifts to our nation in the fight against corruption (…)” The Public Protector, he said, is “the embodiment of a biblical David, who fights the most powerful and well-resourced Goliath.” The office was conceived of to provide “the poor and marginalised a voice, and teeth that would bite corruption and abuse (…)”

The judgment was handed down on 31 March 2016. The incumbent Public Protector at the time was Advocate Thuli Madonsela, a woman who to a large extent embodied what the Chief Justice was describing so lyrically. She was seen by many South Africans as a super-hero, who stood up to speak truth to power on behalf of all South Africans.

But when writing the judgment, the Chief Justice was not talking about Madonsela, even though she may well have deserved such high praise. He was writing about the ideal of what a Public Protector should be – what the writers of our Constitution envisioned a Public Protector to be. He wasn’t writing about the person – he was writing about the office.

Seven months after the Constitutional Court delivered this landmark judgment on the Public Protector’s powers, Madonsela retired and was replaced by Mkhwebane, which the DA strongly opposed.

Mkhwebane soon proved that the DA’s fears about her were justified. Some of the “highlights” of her tenure so far include:

  • The release of the controversial Absa/Bankorp report in June 2017, in which Mkhwebane attempted to dictate a constitutional amendment with far-reaching consequences to Parliament. This is not something the Public Protector is by law empowered to do, and displayed a shocking lack of understanding by Mkhwebane of her role and powers as well as of basic legal principles. While compiling this controversial report, Mkhwebane consulted with the president and the State Security Agency about her recommendations, raising serious questions about her independence. This report as a whole was overturned by the court in February 2018 and a personal costs order handed down against Mkhwebane, signifying how serious and personally negligent the court understood her actions to be. Earlier this month, the Constitutional Court upheld this personal costs order against Mkhwebane.
  • In February 2018 Mkhwebane released another controversial report, looking into allegations of money laundering and corruption surrounding the dairy farm run by Gupta-linked company Estina in Vrede in the Free State. The report was a whitewash, failing properly interrogate potentially damning evidence, and it was rightfully set aside by the North Gauteng High Court in May 2019.
  • In July this year, Mkhwebane released her report into the infamous “SARS rogue unit”, a clear attempt to play upon factional politics in the ANC. This once again indicated that Mkhwebane is not independent and is abusing the noble office of the Public Protector for party political gain. Her recent announcement that she is investigating the rewarding of independent power producing contracts is another example of these factional politics playing itself out through the medium of her office.

The conclusion to be drawn from all of the above is that Mkhwebane, unlike Madonsela, certainly does not embody any the characteristics so highly praised by Chief Justice Mogoeng and the Constitutional Court.

However, this does not mean that the office is no longer any of those things. Nothing has changed as far as the constitutional mandate and the powers of the Public Protector are concerned. The office is still “one of the most invaluable constitutional gifts to our nation,” and the DA will continue to refer complaints to it as and when the law and circumstances so dictate.

We just need to replace Mkhwebane with somebody who is better able to fill the shoes of a “biblical David” – and that is why the DA will not back down in our quest to remove her from her position as soon as possible.

- Steenhuisen is chief whip of the Democratic Alliance.

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