“The only way this democracy is going to be preserved is if there is consistency in holding everybody to account where such accountability is guided by principle rather than love or hate for the personalities involved,” embattled Public Protector, Busisiwe Mkhwebane, told the University of South Africa’s Spring Law Conference in Johannesburg on 17 September.

Mkhwebane finds herself at the centre of controversy after several of her high profile reports and recommendation have been taken on judicial review. Several cases are still pending finality but in others, like the Absa/Bankorp investigation she was found to have lied to court, was biased and acted in bad faith and did not fully understand her constitutional duty to be impartial.

Her continued tenure as public protector hangs in the balance with the Portfolio Committee on Justice and Correctional Services formulating a process to develop the rules for the removal of heads of Chapter Nine institutions in Parliament. The office of the public protector is a Chapter Nine institution.

“I’m not worried about that. I believe I will finish my term in office. I will not allow any distractions. My eyes remain fixed on taking the services of this institution to the grassroots,” Mkhwebane said on Tuesday to the delegates of the Spring Law Conference.

“I continue to do my work without fear, favour or prejudice. If I perish, I perish.”

Mkhwebane blamed the media’s focus on the negativity surrounding her for the lack of attention given to what she has accomplished, saying that in this financial year alone, the office of the public protector had finalised 9,912 cases out of the 14,147 reported to it. But it’s in the high profile cases that she has been found wanting.

Over the past few months, Mkhwebane has come under intense scrutiny around her reports about President Cyril Ramaphosa and Public Enterprises Minister Pravin Gordhan.

In the case of Gordhan, Mkhwebane claimed he’d been untruthful when he told Parliament he had never met the Guptas and was guilty for his role in establishing an “intelligence-gathering unit” while he was SARS commissioner. She also found that Gordhan had unlawfully approved a pension for then General Manager at SARS Ivan Pillay and then proceeded to rehire him part-time. 

Her insistence of the existence of a “rogue unit” is at odds with other findings that have discredited reports on the establishment of an illegal unit. This includes a finding by retired Judge Robert Nugent in October last year that the unit was not unlawful but that the narrative was used as an excuse to purge top officials.

In her recommendations, she instructed President Cyril Ramaphosa to take “appropriate remedial actions” disciplinary actions against Gordhan within 30 days”. She also recommended that the Speaker of the National Assembly refer Gordhan to the Ethics Committee within 14 working days.

In July 2019, Gordhan applied for an interdict to suspend the remedial action set forth against him in Mkhwebane’s report on the SARS so-called ‘rogue unit’ while he seeks a full judicial review.

Even though Mkhwebane tried to challenge the interdict, the Pretoria High Court ruled in favour of Gordhan at the end of July stating that the report was “nonsensical”, “contradictory” and “vague”.

Mkhwebane tried to appeal the High Courts decision by petitioning to the Constitutional Court but chose to withdraw the appeal on August 2019.

Ramaphosa has also separately been the subject of Mkhwebane’s investigations.

Mkhwebane has accused him of misleading Parliament and claimed he too had violated the executive ethics code by not declaring the donations to his CR17 presidential campaign.

On Tuesday, Mkhwebane said she had independent powers to enforce executive ethics under the Executive Members’ Ethics Act. She said with such complaints her office is forced to investigate and conclude them within a month. If the deadline is not met, the public protector must write to the President or the premier informing them that there is still no conclusion to the investigation.

“It was under this law, for instance, that my office investigated the president for misleading Parliament, the nature of his family’s relationship with Bosasa and the claims of money laundering,” Mkhwebane said.

However, on the same day as the conference, Business Day reported that the President publicly accused Mkhwebane of having “ulterior motives in her inclusion of details” of the CR17 campaign. 

Ramaphosa further questioned how Mkhwebane gained access to private and confidential emails linked to the campaign.

“It is my belief that these e-mails were stolen from the CR17 campaign computers. I call on the Public Protector to explain how and from whom she received these e-mails,” Ramaphosa said.

Ramaphosa, according to the Business Day report, Mkhwebane report had “numerous factual inaccuracies of material nature” and is “fundamentally flawed” and this is why he has since decided to take the report on judicial review.

Mkhwebane was also criticised by the Constitutional Court for her Absa/Bankorp report. The court ruled that she had acted in “bad faith” when looking into an apartheid-era deal between the South African Reserve Bank (SARB) and Absa bank. 

“The Public Protector’s entire model of the investigation was flawed. She was not honest about her engagement during the investigation. In addition, she failed to engage with the parties directly affected by her new remedial action before she published her final report. This type of conduct falls far short of the high standards required of her office”, the judgment delivered on 15 August 2019 found. 

Attempting to explain the flawed investigation into the Gupta-linked Estina Diary Farm, stated that she was under a lot of pressure when it came to the Estina Dairy Farm case too.

In February 2018, Mkhwebane released the Estina Dairy Farm report which highlighted gross procurement irregularities and maladministration in the Free State department of agriculture’s deal with Estina, but it did not tackle the involvement of implicated politicians, including former Free State premier and current ANC Secretary-General Ace Magashule and former provincial agriculture MEC Mosebenzi Zwane – both linked to a number of allegations of corruption involving the Gupta family.

The North Gauteng High Court ultimately set aside the Estina report.

“They were like time bombs waiting to happen,” Mkhwebane said at the conference.

Mkhwebane used the charm offensive to try and rebuild her reputation by highlighting what the office has done, stating that the office has no political affiliations to any political party, and reiterated that she only wants to help those who don’t have “financial muscle”.

It was unclear by the end of her address whether her charm offensive found fertile ground with the audience in attendance. DM