5 thorns in the side of the Public Protector

Busisiwe Mkhwebane (Gallo)
Busisiwe Mkhwebane (Gallo)

The Constitutional Court's decision to uphold a cost order against Busisiwe Mkhwebane on Monday only adds to the embattled Public Protector's woes.

A number of Mkhwebane's reports have either been set aside or taken under review.

According to Business Day, a total of 30 Public Protector reports have been taken on review to date. 

In addition, her fitness to hold office is being looked into by Parliament's justice and correctional services portfolio committee. 

After being in office for more than two years, Mkhwebane has faced criticism for some of her reports, and it has been said that she is "incompetent" and that her credibility has "plummeted".

Mkhwebane previously said that her office was going through "testing times" and that the institution was faced with attacks from every angle, including the "most unfair reporting in the media". 

READ: 7 things you need to know about the scathing ConCourt judgment against Mkhwebane

Here are five of the biggest challenges Mkhwebane and her office are currently facing: 

1. Absa/Bankorp cost order upheld

The Constitutional Court on Monday agreed with the Gauteng High Court in Pretoria that her entire Absa/Bankorp investigation was flawed, and that Mkhwebane had not been honest during her investigation. 

In February last year, Mkhwebane's Bankorp-CIEX report, where ABSA was ordered to pay R1.125bn, was set aside by the Gauteng High Court in Pretoria. 

In a devastating ruling, the court set aside her report, as well as the remedial action she had recommended, and ordered her to personally pay some of her opponents' legal costs.  

READ: Public Protector report on ABSA bailout set aside

In handing down judgment, Justice Cynthia Pretorius ordered Mkhwebane to pay 15% of the South African Reserve Bank's (SARB's) costs in her personal capacity. The rest of the 85% would be paid by her office. Her office also has to pay the costs of ABSA on an attorney and client scale, including the costs of three counsel.

On Monday, the Constitutional Court said, in a majority judgment: "This court holds that the Public Protector's entire model of investigation was flawed and that she was not honest about her engagements during the investigation. In addition, she had failed to engage with the parties directly affected by her new remedial action before she published her final report.

"This court finds that the Public Protector's explanation for why she discussed the vulnerability of the Reserve Bank with the State Security Agency was unintelligible."

The majority judgment also found that Mkhwebane had failed to explain why she did not disclose any of her meetings with former president Jacob Zuma in her 2017 report. She also did not produce transcripts of her meetings with the Presidency or the State Security Agency.

The court also ruled that the Public Protector had put forward "a number of falsehoods in the course of litigation", including misrepresenting under oath the economic analysis that underpinned her investigation.

2. Ramaphosa seeking urgent judicial review

President Cyril Ramaphosa on Sunday said he would be seeking an urgent judicial review of Mkhwebane's report which found that he had violated the executive code of ethics by not declaring donations to his ANC presidential campaign in 2017. 

On Friday, Mkhwebane found that the president had deliberately misled Parliament when he responded to a question about the R500 000 donation from former Bosasa boss Gavin Watson.

"He deliberately misled Parliament, in that he should have allowed himself sufficient time to research a well-informed response," Mkhwebane said.

In her remedial action, Mkhwebane demanded the publication of all donations received by Ramaphosa, because he was the deputy president then and was thus bound to declare such financial interests.

READ: Ramaphosa to take Public Protector's 'fundamentally flawed' report on urgent court review

She said this should be done within 30 days of receipt of her report.

Mkhwebane asked National Assembly Speaker Thandi Modise to refer Ramaphosa's violations to the Joint Committee on Ethics and Members' Interests for consideration.

Ramaphosa, speaking to the nation from the Union Buildings, said the report contained "numerous factual inaccuracies of a material nature".

He also claimed that Mkhwebane had violated the Public Protector Act, the Constitution and "the principles of our common law" by not giving him an opportunity to comment on the proposed remedial actions.

The president said it was appropriate that the matter be placed before the courts and that they be allowed to make a determination.

3. Gordhan takes the gloves off

Public Enterprises Minister Pravin Gordhan filed court papers on July 10, in an urgent bid to interdict remedial actions in a report released by Mkhwebane on July 5.

The papers were filed in the North Gauteng High Court in Pretoria on Wednesday and are in response to Mkhwebane's report on SARS and conduct by Gordhan, particularly surrounding the so-called "rogue unit", News24 reported.

Gordhan wants the court to interdict Mkhwebane and the Office of the Public Protector from taking any action to enforce the remedial action.

She recommended action be taken by Ramaphosa, National Assembly Speaker Thandi Modise, State Security Minister Ayanda Dlodlo, National Director of Public Prosecutions Shamila Batohi and police commissioner General Kehla Sitole.

While the urgent application merely seeks an interdict against the remedial actions, the main application filed by Gordhan asks that the entire report be declared unlawful and be set aside.

READ: Gordhan files review of 'dishonest, reckless' Mkhwebane’s 'rogue unit' report

He asked the court to declare that "the Public Protector and Advocate Mkhwebane personally acted in breach of their constitutional duties to be independent and to exercise their powers and perform their functions without fear, favour or prejudice".

"It is declared that the Public Protector and Advocate Mkhwebane personally, dishonestly or alternatively recklessly made her findings in the report against the applicant [Gordhan] in that they knew the findings were false or were reckless as to their truth".

Mkhwebane found that Gordhan was guilty of maladministration and violating the prescripts of the National Strategic Intelligence Act, as well as the Consitution, over the establishment of an intelligence unit at the South African Revenue Service in 2007.

Mkhwebane has hit back at Gordhan, calling his bid to have remedial action against him reviewed as "an unjustified attempt by an aggrieved party to avoid accountability for his unlawful conduct".

In an answering affidavit, Mkhwebane said Gordhan had used his bid to have her findings against him set aside to "mount unjustified insults by making unprecedented allegations that I have aided corruption and state capture".

She asserts that this claim is made "without a shred of evidence".

In May, Gordhan filed a separate review application of a report by Mkhwebane that relates to the early retirement of former SARS deputy commissioner Ivan Pillay.

READ: Gordhan files review application, asks court to set aside Mkhwebane's report

Mkhwebane found that Gordhan flouted the law, procedures and the Constitution in approving Pillay's application for early retirement with full benefits. She found that Gordhan did not have the legal authority to grant early retirement with full benefits and that he used the wrong legal provisions in doing so.

Gordhan said he would ask the court for a declaratory order that Mkhwebane did not act in accordance with the Constitution or the Public Protector Act.

In a notice of motion lodged, Gordhan's attorneys say he will ask the court to set aside both Mkhwebane's decision to investigate and the subsequent report as "unconstitutional, unlawful, irrational and invalid".

He will also seek a punitive costs order against Mkhwebane.

4. Fitness to hold office to be reviewed... again

The Portfolio Committee on Justice and Correctional Services will look at the latest request for the review Mkhwebane's fitness to hold office.

DA chief whip John Steenhuisen recently requested that the office of the Speaker of the National Assembly initiate and expedite removal proceedings against Mkhwebane. It is the third time the party has tried to kickstart removal proceedings since her appointment in 2016.

In February 2019, she survived removal from office following a majority vote by the portfolio committee.

And in October 2017, ANC MPs pulled the plug on the first proposed review of Mkhwebane's fitness to hold office, in a bizarre U-turn, after initially agreeing a week earlier that it would investigate the matter.

Mkhwebane has threatened court action in defence of her position, warning Parliament to back off amid a probe into her fitness to hold office, a Sunday newspaper reported.

Mkhwebane wrote to Modise, saying she would meet her in court if Parliament tried to remove her, the Sunday Times reported.

Fin24 previously reported that calls had intensified for Mkhwebane to be fired, with the DA seeking to revive a parliamentary process to remove her from office.  

The Congress of the People also called for Mkhwebane's head, describing her as "incompetent".

Trade union federation Cosatu said Ramaphosa should set aside all Mkhwebane's reports until her competency and trustworthiness had been ascertained.

The Organisation Undoing Tax Abuse also called for the Public Protector's reports to be set aside until her fitness for office had been reviewed.

5. The Vrede dairy farm report

In May, the Gauteng High Court in Pretoria ruled that Mkhwebane failed in her duties to investigate and report on the Vrede dairy project in the Free State. 

Judge Ronel Tolmay ruled that Mkhwebane's report was unconstitutional and invalid, and set it aside on the grounds that she failed in her duties to investigate and report on the controversial project.

The high court said the Public Protector acted irrationally by neglecting a complaint laid in May 2016 regarding the project.

The DA and Council for the Advancement of the South African Constitution (Casac) applied last year to have Mkhwebane's report on the project declared unconstitutional, and to have it reviewed and set aside.

Gifted to Estina in 2013, under a free 99-year lease by the provincial agriculture department, the farm has been one of the most scandalous transactions between the Guptas and a government entity. The #GuptaLeaks revealed last year how at least R30m paid to the Guptas via the farm ended up funding the family's lavish Sun City wedding in 2013.

In the application, the DA's advocate Janice Bleazard argued that Mkhwebane had failed to investigate a complaint lodged by the party's caucus leader in the Free State legislature, Roy Jankielsohn.

Between 2013 and 2016, Jankielsohn submitted three complaints to the Public Protector in respect of the project, calling on the provincial government and then Free State premier Ace Magashule to be probed.

However, when Mkhwebane assumed office in October 2016, she inherited a provisional report prepared by her predecessor, Thuli Madonsela. In 2018, Mkhwebane quietly released the report, highlighting procurement irregularities, "gross negligence" and maladministration related to the controversial project.

As remedial action, she recommended that Magashule "initiate and institute disciplinary action against all implicated officials involved in the Vrede dairy project".

However, the DA felt that Mkhwebane had not been "prudent" in her investigation and that senior politicians implicated in the project were not interviewed.

The DA argued that, when she assumed office, Mkhwebane was required to conduct a preliminary investigation into the merits of Jankielsohn's complaint or refer the matter to another appropriate investigative authority.

"She did not do so. Instead, she purported to ignore the third complaint as a mere inconvenience."

Casac argued that the report did not include findings relating to the "high-level politicians that played a central role in the project".

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