Over time five different courts have ruled that Mkhwebane had lacked a fundamental understanding of the law, that her judgements were deeply flawed and that she had gone beyond her powers, writes Melanie Verwoerd
Yesterday the Gauteng High Court in Pretoria set aside the Public Protector’s report into President Cyril Ramaphosa’s campaign funding as well as her finding that he deliberately misled Parliament last year.
It was another scathing judgment against Busisiwe Mkhwebane, with the judges ruling that she displayed a "complete lack of basic knowledge of the law and its application" and that some of her findings were "unfathomable".
This came as no surprise to me.
Last year I wrote a column expressing my belief that the report had serious, but obvious shortcomings.
You certainly did not need a law degree to have seen that.
With just a tiny bit of logic, even the most politically uninformed person would have been able to reach the conclusion that there were fundamental mistakes in her report.
The question remains: how did she not see that?
Let's first remind ourselves of what happened.
On 6 November 2018, the President answered a question relating to VBS in Parliament.
The former leader of the DA, Mmusi Maimane, asked a supplementary question relating to a contract that the President’s son Andile Ramaphosa allegedly had with Bosasa.
Since the original question related to VBS, the President had not seen Maimane’s question in advance and did not need to have answered the follow-up question.
(Something the Public Protector made a big deal about in her original report.)
In his response during the PP's subsequent investigation, the President stated that he had heard about his son's contract with Bosasa two months earlier and had assumed that was what Maimane’s question had referred to.
It was only once he had left the chamber that one of his campaign managers informed him that it related to CR17 campaign funding.
After investigating the matter, he paid the money back and then wrote to the Speaker to set the record straight.?
The PP in her report accepted that Ramaphosa had acted in good faith, but said that since the rules of Parliament didn't explicitly provide for such a written apology (and since he had "admitted" in his reply that he had made a mistake), he had de facto misled Parliament.
Apart from the fact that ministers often correct replies to Parliament, there was also a contradiction in Mkhwebane's finding.
On the one hand, she agreed that he had acted in good faith, yet on the other, she insisted that he had deliberately misled Parliament.
See why you don’t need to be a genius to realise how bad this report was?
Mkhwebane had then raised the issue of personal benefit to the President and his family.
After looking at bank accounts and contracts etc., it seemed that she no longer had any concern around Andile Ramaphosa’s involvement with Bosasa – which was what she was supposed to investigate and something that the High Court also noted.
Instead she investigated the donations to the CR17 campaign.
She argued that by becoming president, Ramaphosa had personally benefited from the campaign and thus should have declared every single donor to his campaign.
The High Court could find no evidence that the President personally benefited from the campaign.
Ultimately, as I also stated last year, the CR17 donations were part of a party-political campaign and not a matter of state and thus Mkhwebane had no jurisdiction to investigate this matter.
The court yesterday confirmed this.
The question is, if I and so many other non-legal people knew this from the outset, how is it that Mkhwebane did not?
Mkhwebane also raised very serious questions about possible money laundering in her original report.
In this instance she did acknowledge that it was outside her jurisdiction (well done!), but given the manner in which she had raised the issue, it clearly seemed to indicate that there was a problem and cast very serious suspicion on the president.
In relation to this matter, the court yesterday ruled that she misunderstood the basic difference between money laundering and corruption.
The ruling further stated that in relation to this matter, "the question framed by the PP to investigate possible money laundering was ... not based on any evidence at all".
This judgment by the Gauteng High Court confirms what most people have known for a long time. The current public protector is not fit for office and should go.
(I suspect even the EFF know it, but for political expediency won’t say it publicly.)
Of course Mkhwebane does not agree and has vowed to stay in office.
Yesterday when asked if she felt she must remain in office, her spokesperson said: "Yes, she does. She does not believe that the reasons for one to stay in office must be based on the merits of her investigations or even the arguments she brings before court. If that was the case even judges' stay on the bench would be threatened. Courts criticises judges time and again, saying: 'here you misapplied the law' ... So if that (being removed) doesn’t happen to judges, why should it happen to the Public Protector?"
Clearly this is not only a case of a different interpretation of the law.
Over time five different courts have ruled that Mkhwebane had lacked a fundamental understanding of the law, that her judgements were deeply flawed and that she had gone beyond her powers.
They have also questioned her attitude toward, for example, the Speaker of Parliament and the National Director of Prosecutions.
The point is that the Public Protector is there to protect us, the public.
An opinion poll a few months ago by ENCA suggested that more than 70% of people who responded had lost faith in her.
Surely if those who she is supposed to protect have lost faith in her, she should do the decent thing and resign?
She should not waste more of the state’s resources by waiting for a lengthy parliamentary process to conclude and then of course appeal the findings.
The bottom line is that her legal colleagues (through the court rulings) have seriously questioned her competency.
The public has lost faith in her.
What more does she need?
- Melanie Verwoerd is a former ANC MP and South African Ambassador to Ireland