The background to Monday’s findings against Public Protector Busisiwe Mkhwebane reads like a spy novel.In 2017, in a set of findings that seemed impossible to sustain, she declared that Parliament must change the Constitution to change the mandate of the Reserve Bank, and that the Special Investigating Unit (SIU) must take steps to retrieve money she believed government gave to Absa bank in the 1990s. At the time, it was for the rescue of Bankorp, which was eventually drawn into what is now Absa. She was completing a complaint submitted by Accountability Now Director, Advocate Paul Hoffman.
Even he at the time was surprised by her findings, particularly that the mandate of the Reserve Bank was to be changed.
Then it emerged that there had been all sorts of correspondence that Mkhwebane had entered into while arriving at her decision. There were meetings and communications that were not properly divulged to Absa and the Reserve Bank.
These included a meeting with the State Security Agency which led to the creation of a handwritten note, on which was written the heading “Reserve Bank” and a point under that, “how are they vulnerable”. She also met a man called Steven Goodson, who is often identified as a Holocaust denier. Goodson, who died in 2018, published a book claiming that mankind was enslaved by central banking. And it seems that it was on his recommendation that she made her finding about the bank’s mandate.
In the end, it is this series of events that the Constitutional Court examined in its ruling on Monday.
The key phrases are that she “acted in bad faith”, that she “was not honest about her engagements during her investigation” and “had put forward a number of falsehoods during her litigation including misrepresenting under oath to the High Court”.
In short, she lied.
The question now, of course, is what happens next.
It seems obvious that the first legal step will not be in Parliament, but in the legal application to be submitted by Public Enterprises Minister Pravin Gordhan. He is likely to immediately include this judgment to bolster his claim that Mkhwebane cannot be trusted. For him, she has shown that she is part of a political campaign against him. He is likely to argue that this ruling demonstrates this.
Then, it is likely that his boss, President Cyril Ramaphosa, will follow suit. He is also challenging her findings in court. This too will bolster his case.
While that might help legally, in the court of public opinion it is likely to be even more powerful. Ramaphosa and Gordhan are both claiming that they are the victims of a gun hired by the “fightback” campaign. For those who want to support them, this will add to the evidence of this.
Then there is the situation in Parliament.
Mkhwebane has already written to Parliament claiming that there is no proper process it can follow to remove her. The reason for this appears to be in the technical space of making rules for its committees to follow.
However, Parliament, should it wish to, could argue that this is a unique and urgent situation. We have not had a Public Protector, or anyone in a Chapter 9 institution, who has been found to have lied under oath in this way before. As a result, action is necessary, and it cannot wait.
But Mkhwebane has given every indication that she will legally oppose any bid to remove her, and so could drag this out through the courts.
However, there is of course the political situation to consider, and particularly within the ANC.
There, it seems that the divisions between Ramaphosa on the one side, and the Zuma/Magashule axis on the other, will come into play. In the end, to remove a Public Protector, you need to have the relevant Parliamentary Committee make a recommendation. That must then be agreed two by two thirds of the National Assembly. That may be pretty easy to do, in that the ANC and the DA together easily cross that threshold (the EFF is supporting Mkhwebane while the DA is both lodging complaints with her and demanding her removal).
But the ANC would not want to introduce such a motion until there is unity in its own ranks. And a brief examination of its Parliamentary caucus shows that there might well be divisions. This means that it would come down to a discussion in the national executive committee.
However, and this may well be important later, the Constitution also says that the “President may suspend a person from office any time after the start of the proceedings of a committee of the National Assembly for the removal of that person”. That may mean that all Ramaphosa has to do is to make sure that the Chair of the committee, Gratitude Magwanishe, starts those proceedings. Then he would have the legal basis on which to remove her, at least temporarily.
However, because of the difficulties in the ANC, this is unlikely in the shorter term.
Rather, there is likely to be a longer period of stalemate in the NEC. Neither side will bring it up because they are not sure they will have the numbers. This means that Mkhwebane could still remain in office for some time.
What this ruling will do in the meantime is render her rulings politically irrelevant. People will make complaints to her office, and every single finding will be taken to court.
The problem with this is that this office will be yet another casualty of the in-fighting within the ANC. It will be another organ of the state that will not work because of politics. Like so many other aspects of governance, it will be rendered useless. The people who will suffer are not the politicians, but those who rely on her office for succour.
A question that may emerge, if, for the sake of argument, it is accepted that she is working for a political faction, is why has that faction allowed her to be weakened in this way, just as she is making headway against Ramaphosa. The answer to that might well lie in the timing.
They needed her to work for them in the run-up to Nasrec; the main aim was to ensure Zuma’s chosen candidate Nkosazana Dlamini Zuma won. At the time, the banks had come to be seen to part of the campaign against Zuma, because they were being used by the Guptas to transfer money out of the country. This placed them in violation of US laws, and thus they could lose their regulatory permission to transfer money there. And Mkhwebane was asked to weaken the banks, hence the note and the words “how are they vulnerable?”.
It was only after Zuma lost at Nasrec that she then turned against Ramaphosa and made the findings that she has.
All of this holds only if you believe she is acting with a political motive. If you do not, then the question would come: why. Why did she lie and give falsehoods to the courts in these cases? This could now become the issue.
As the pendulum swings again. DM