“Covid-19 gave me some breather from public attacks,” says Public Protector Busisiwe Mkhwebane as she looks back on the year that was. She says that even her family members appreciated that, for four to five months, they also had a break from reading negative reports about her.
Mkhwebane started the year butting heads with the SA Revenue Service (Sars), the Hawks and the Speaker of the National Assembly Thandi Modise.
The revenue collector wanted Mkhwebane to submit her financial information dating back to 2011; the Hawks wanted her to give a warning statement on charges of perjury and defeating the ends of justice; and Modise approved the DA’s motion in Parliament for an investigation into Mkhwebane’s fitness to hold office.
The Sars action was triggered by a story that she had received foreign income “and they still cannot find anything there”, she says, adding that she is still waiting for the audit.
Mkhwebane says the DA also labelled her a spy, but the party cannot prove its claims and has refused to apologise or retract the allegation.
“We have taken them to court and that judgment is still not out. It is strange that the Supreme Court of Appeal handed down the Vrede judgment within a month,” she says, referring to the controversial Gupta-linked Estina dairy farm project in the Free State. But the DA case has not made any progress for more than a year now, she says. She warns that justice cannot depend “on whether you have resources and the colour of your skin, and the justice system is now going to that level”.
In March, Finance Minister Tito Mboweni also took aim at Mkhwebane, saying she should “fall on her sword” after the Pretoria High Court set aside the investigative report into President Cyril Ramaphosa’s #CR17 ANC presidential campaign in 2017.
“Game over,” Mboweni tweeted. EFF member of Parliament Mbuyiseni Ndlozi retorted: “No tin fish sword formed against the PP Busisiwe Mkhwebane shall ever prosper!”
In October, Transport Minister Fikile Mbalula entered the fray. “Am not afraid of them Jacob Zuma, Karl Niehaus, Kebby Maphatsoe, Busisiwe Mkhwebane and Ace Magashule,” Mbalula said in tweets that have since been deleted. Mkhwebane turned to Ramaphosa for protection.
She says attacks were also directed at one of her lawyers, Advocate Muzi Sikhakhane, who “received calls from some in the legal fraternity, also attacking him for representing the office of the Public Protector”.
“An advocate should be practising their trade without being threatened and being ostracised because they are alleged to be linked to the former president [Zuma],” she says.
On the litany of judgments in which several judges made adverse findings about her competence, Mkhwebane says she still respects the judiciary, “but some have issued questionable judgments”.
“They listen to the media and narratives, but ignore the evidence before them. What these courts are doing is so embarrassing,” she says.
Some of her colleagues were equally distressed and even wondered whether “it was a good decision to study law”.
“Whatever they are doing is also damaging to the independence of the judiciary. Let them focus on the facts and not play the man…
“Unfortunately, they are now focusing on me and forgetting about justice for the people. It is like they are now at war with their own people,” Mkhwebane says.
She says it was disappointing to find judges referring to the Nugent report [from the Commission of Inquiry into Tax Administration and Governance by Sars] as the authority on the Sars “rogue unit” when retired Judge Robert Nugent, who chaired the inquiry, did not even investigate the lawfulness of the unit and “he acknowledged so himself”.
“Sars should have investigative capacity because the law allows it. But that did not extend to the use of methods, tactics and equipment used by the State Security Agency, because that is unlawful,” she says.
A small consolation for Mkhwebane in the recent Sars “rogue unit” report set aside by the court is that the judges struck off parts of Public Enterprises Minister Pravin Gordhan’s affidavit as irrelevant, she says.
On her much-criticised “oksalayo” comment on Twitter after the rogue unit judgment, Mkhwebane insists that all she is saying is that “whatever happens, history will judge us correctly”.
“I’m not even saying that about me as a person, but the poor investigators who worked on the case. Then you find a judge calling [Ivan] Pillay a minister? It’s really tough and concerning.”
Pillay is former Sars deputy commissioner and one of the people accused of setting up the rogue unit.
On Tuesday, the Constitutional Court set aside the personal costs order against her in another matter involving Sars and Zuma’s tax records, following allegations that the former president had earned an extra salary that he did not declare while he was head of state.
However, the apex court declined to hear the appeal that Mkhwebane could subpoena the tax records of an individual on the grounds that direct application was not established. So far, she has settled more than R280 000 of the cost orders against her from money raised by a sympathetic NGO.
This after her report in the R1 billion lifeboat matter between her office, the Reserve Bank and Absa bank was set aside by the court. She says calculations were still pending on the other personal costs orders, including the Vrede dairy farm case and the 15% sanction for the rogue unit report.
Mkhwebane says she does meet some of the judges during events and, “when we see each other, we talk”. At one function, a judge joked that she would issue a personal cost order against a colleague, she says, adding that has always been the spirit during the public encounters with members of the judiciary.
There is also pressure to get her to affiliate with the Legal Practice Council, and she is taking legal advice on the matter, especially after the court ruled that she must be referred to the body after the rogue unit case, she says. Since she is not a member of the council, it does not have jurisdiction over her work.
“They want me to leave, but I will decide on my own when the time is right. Not when I see all these things that are happening. We are here to make sure that all people are treated equally before the law. Why must others do as they please and others are just being singled out without any evidence against them?”
Speaking about her future beyond her tenure, Mkhwebane says she has a passion for human rights.
“I will always defend the poor and marginalised; that is my focus.
“I’d rather not even earn a salary as long as I can help a person who cannot help themselves. To me, it’s not even about the money or having a position, but about making sure that everyone is treated equally.”
She says next year is likely to be another bumpy ride “if I’m still here and not suspended”.
“I expect anything and nothing surprises me any more, including the judgments that are being issued. It pains me to see the impact it has on the investigators concerned, but, for my side, I expect it.
“Even when we go to court, whatever is argued I do not even have high expectations,” Mkhwebane says.