ANALYSIS: High court leaves Parliament little choice but to investigate Mkhwebane

Busisiwe Mkhwebane
Busisiwe Mkhwebane

“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.” – Judge Ronel Tolmay in the North Gauteng High Court, setting aside the Public Protector’s report into the Estina dairy matter, 20 May 2019.

“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 in the North Gauteng High Court, setting aside the public protector’s report into the Absa/Bankorp/SA Reserve Bank matter, 16 February 2018.

Ace Magashule, Mosebenzi Zwane and Jacob Zuma couldn’t have asked for a better friend than Public Protector Busisiwe Mkhwebane. She went out of her way to alter the provisional report into the Vrede dairy project and the joint venture between Magashule, Zwane, the Free State provincial government and the Guptas.

Not only did she leave out crucial findings and remedial action in her final report – markedly different from the provisional version compiled by her predecessor, Thuli Madonsela – but she narrowed the scope of her investigation to leave out references to Magashule.

And then she proceeded to ignore a report by National Treasury (that made scathing findings about Vrede/Estina), dodged all media reports and information in the public domain about the Vrede corruption (like the Gupta Leaks) and didn’t bother to interview some of the intended beneficiaries of the project (even though she had their details) who were so royally screwed over by Magashule’s provincial government.

Judge Ronel Tolmay from the North Gauteng High Court certainly didn’t mince her words in her written judgment in the Estina dairy farm matter. It’s a devastating judgment, one that should surely lead to an urgent inquiry by Parliament’s justice committee followed by a vote on her fitness for office.

The picture emerging from her judgment – and compounded when read together with Judge Cynthia Pretorius’s Absa-SARB judgment – is that Mkhwebane is at best incompetent and negligent, and at worst calculating and devious. And it’s the second judgment of this nature where her competence for and comprehension of the duties and obligations of her post were questioned.

The Estina dairy matter is one of the most brazen and flagrant examples of state capture under the destructive government of the ANC’s Zuma. With Magashule as Free State premier, millions of rands were channeled to the unviable project, with many of those millions spirited off to the Guptas to help pay for the extravagant Sun City wedding.

Investigations into the matter began after media reports and a range of complaints laid with Madonsela by Roy Jankielsohn, a Free State DA MPL who has been chasing this matter for years. And when the Gupta Leaks prised open the dealings by Magashule’s government and his MEC, Zwane, with the Guptas, the matter seemed pretty transparent.

With National Treasury issuing a damning and comprehensive report, in which it found Magashule and Zwane “enabled, encouraged and authorised” the implementation of the project and a provisional report by Madonsela making particular findings about mismanagement and fruitless and wasteful expenditure, Mkhwebane had enough information on which to base her final report.

But what did she do?

She altered Madonsela’s findings and ignored the rest. She decided not to interview anyone of importance, she refused to requisition proper financial statements and opted to leave out any reference to Magashule, the implicated premier. And, remarkabky, she left it to Magashule (an implicated party) to determine how to investigate any irregularities.

The list of things that Mkhwebane decided not to investigate is long. It included how money transferred to Estina was spent, what the impact on the intended beneficiaries was, Zuma, Magashule and Zwane’s roles, allegations of kickbacks paid by the Guptas and the flaunting of Treasury regulations.

“Her decision to limit the scope of the investigation so dramatically was irrational as it sidestepped all the crucial aspects regarding the complaints and led to a failure on her part to execute her constitutional duty,” Tolmay found.

The court also found that Mkhwebane time and again neglected to try and source all the relevant information or evidence needed to make a considered and fair determination, repeatedly citing “financial constraints on her office” as reasons why she didn’t delve deeper.

Some of the stinging rebukes include:

“The steps taken by her seem wholly inadequte, considering the magnitude and importance of the complaints raised.”

“On what basis she could justifiably come to such a conclusion is unclear. It points either to ineptidude or gross negligence in the execution of her duties.”

“It seems the public protector chose to simply ignore the information supplied to her and then blamed financial constraints for her failure to execute this simple task.”

“The failure of the public protector to execute her constitutional duties… points either to a blatant disregard to comply with her constitutional duties and obligations or a concerning lack of understanding of those duties and obligations.”

“The public protector’s failures… are of serious concern… as it may point to a concerning incomprehension of the nature and extent of her obligation towards the people of this country and her obligations in terms of the Constitution and the Public Protector Act.”

“The report by the public protector did not address the major issues raised in the complaints, nor the numerous indications of irregularities.”

Mkhwebane is, at best, simply not up to the job. She makes material errors in law, she has no clue what the extent of her powers are and she does not understand what her constitutionally enshrined role entails. At worst she acted to protect Magashule, Zwane, Zuma and the Guptas, actively undermining her own office’s investigation and obstructing justice.

Earlier this year the justice committee declined to launch an inquiry into Mkhwebane because of her pending appeal against the Absa judgment. In the Nkandla judgment in March 2016 the country’s highest court found Parliament and the National Assembly breached the Constitution by not properly scrutinising the findings of the then public protector.

This time around it is a High Court judgment that found the Public Protector acted unlawfully and unconstitutionally.

It's now up to legislators to investigate and, based on two High Court judgments, remove a Public Protector who either disregards her obligations, or doesn’t understand them.

Either way, she must go.

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