When she worked in Beijing, China as an immigration officer, Public Protector Busisiwe Mkhwebane was called Meng Xi, as Phillip de Wet wrote in a profile of her at the time of her appointment in 2016.
She won the role after exhaustive interviews in Parliament, but also because she was nominated from the Presidency of the then-incumbent Jacob Zuma – her ticket to support from the ANC caucus at Parliament.
In December it was revealed that Mkhwebane had allowed intelligence operative to dictate her finding into the SA Reserve Bank where she instructed Parliament to alter the mandate of the central bank. This suggested that she handed authority to intelligence agents to stage an attack on the bank to further the interest of the Gupta patronage network which saw the SARB as a stumbling block.
The ANC had been divided on her appointment as it is alleged that Judge Siraj Desai had been told he was a shoo-in for the role. Another view is that he was a stalking horse candidate to allow Mkhwebane to win.
Like Yu Shu Lien in the epic film Crouching Tiger, Hidden Dragon, Mkhwebane has engaged in sword fights all year long – though of the legal variety.
Whether deliberately or not, her actions have stalled reform after the scorched earth legacy bequeathed to South Africa by her political benefactor. While she denies it, Mkhwebane is now clearly aligned to a faction of ANC politics and to the patronage network arranged around Zuma. She first unsheathed her sword in 2016, taking up a Black First Land First (BLF) campaign to use her power to investigate the Bankorp bailout by the central bank between 1985 and 1992.
The BLF, a failed civic movement started when its founder Andile Mngxitama quit the EFF and needed a home, morphed into an organisation of Gupta-family sponsored provocateurs. It is now aligned to Zuma and is part of the motley crew who support him at court cases and also did so at his appearance at the Zondo Commission of Inquiry in July.
Even though Judge Dennis Davis had investigated and found that the ultimate claimants for the bailout paid would be pensioners, and the ANC had decided to let it go, Mkhwebane found that Absa (founded from a merger of banks including Bankorp) had to repay R1.2-billion.
Then, Mkhwebane revealed an imperious streak: she instructed Parliament to rewrite the Constitution to alter the enshrined independence of the central bank. Telegenic and haughty, Mkhwebane’s reports, speeches and press conferences show her to be a know-it-all spirit when that is not always the case. In one of her findings, she made the following breathtaking statement:
“The fact that there are no firm findings on the wrongdoing, this does not prohibit the public protector from taking remedial action. The public protector’s observations constitute prima facie findings that point to serious misconduct.” In other words, her observations are of such authority that evidence can be waived in making findings.
2019 – the year of the Spitfire
This year, Mkhwebane has come into her own. She has issued breathtaking reports accusing Cabinet ministers, the president and others in language so intemperate that she has earned opprobrium from judges. In her time in office, Mkhwebane has been taken on judicial review many times and two findings have been set aside: the bailout finding as well as one on the Gupta-linked Vrede dairy case. In one successful interdict of a finding, Judge Sulet Potterill described most of Mkhwebane’s remedial orders as “vague, contradictory and/or nonsensical”.
Her spokesperson Oupa Segalwe said Mkhwebane’s findings on the misspending of funds for Nelson Mandela’s funeral and on Helen Zille’s tweets defending colonialism had been successfully defended.
“The spike [on reviews of findings] has its roots in the ConCourt judgment which declared that the public protector’s findings are binding unless reviewed and set aside. Since then, everybody goes to court,” he says.
For instructing Parliament to rewrite the Constitution and for the lamentable quality of her reports as well as for allegedly lying, Mkhwebane got a judicial smackdown, not once, but twice, when the Constitutional Court also decided in July that she should pay R900,000 as part of a personal cost order against her. That’s unprecedented. The North Gauteng High Court also said she should personally pay 7.5% of two applicants’ legal fees in the Estina dairy case.
Still, it didn’t stop Mkhwebane who, in 2019, alerted the bank to six further investigations into the SARB, according to governor Lesetja Kganyago.
The central bank is a battering ram of the fightback faction that has coalesced this year and which could gear up for a huge battle with President Cyril Ramaphosa when the ANC meets for its mid-term assessment national general council in 2020.
The ANC resolved at its Nasrec conference in 2017 that the central bank should be nationalised (it has a small number of private shareholders without any decision-making authority) – a cry that has been taken up by EFF leader Julius Malema. Malema has tabled a private member’s bill in Parliament for the nationalisation of the SARB. In several other areas, there is a clear coalition of interests building between a faction of the ANC and the EFF.
This is where Mkhwebane stacked up the points for Daily Maverick saboteur of the year. While the public protector always vaunts the stated principles of her office to act without fear or favour and always independently, the proof of her pudding is not in the eating.
In this growing alliance between the ANC’s fightback faction and Malema, Mkhwebane is a central element. The EFF has repeatedly used complaints to Mkhwebane under the Executive Members’ Ethics Act – which governs the ethical conduct of executive political office-bearers – to take potshots at the Ramaphosa administration.
Mkhwebane and the EFF deputy president, Floyd Shivambu, appear to have an excellent relationship as she investigates his complaints with promptitude not always seen when other political investigations land on her desk.
Shivambu is the complainant in two of the six active investigations the public protector has going against Minister of Public Enterprises Pravin Gordhan. Gordhan, in turn, is like a lightning rod for Mkhwebane. She has accused him of sabotage and has engaged in a war of attrition against the minister.
While he has the unenviable task of propping up Eskom and ensuring the lights stay on (unsuccessfully) and of keeping SAA in the air (only just), Gordhan has endured the politics of distraction all year long as Mkhwebane has kept pinging investigation notifications into his inbox.
Most of the investigations relate to Gordhan’s time at SARS and, in addition to the two investigations instigated by Shivambu, Mkhwebane has also started an investigation based on a complaint by former Gupta family business partner Mzwanele Manyi. Manyi is now in the political wilderness after revelations about his role in State Capture emerged at the Zondo Commission and after he joined an ill-fated political party to contest the elections this year. Still, Mkhwebane has put Manye’s complaint against Gordhan at the top of her pile.
Gordhan has successfully interdicted two of Mkhwebane’s reports – into the early retirement of former deputy SARS commissioner Ivan Pillay and into the alleged rogue unit at the tax collector. Ramaphosa had to interdict that report too as Mkhwebane had directed her instruction for remedial action at him.
Now another court action is looming and it will investigate whether or not the public protector can impinge on presidential prerogative in the way that Mkhwebane tried to in one of her reports into Gordhan when she instructed that Ramaphosa must take action against Gordhan.
Much of 2019 has been dedicated to increasingly shrill fights and the open lawfare Mkhwebane has chosen in the guise of being public protector. She said Ramaphosa’s application left a“sour taste in the mouth”, that he was guilty of a “serious breach of protocol” and she accused him of favouring Gordhan over her.
In papers defending herself against allegations of abuse of power by her axed COO Basani Baloyi in November 2019, she accuses the whistle-blower of “inordinate and unexplained dilatoriness, lethargy and downright inertia”.
Mkhwebane’s sorties gave space to the fightback faction, which used her reports as cover for an increasingly histrionic attack game on both Gordhan and Ramaphosa, largely using powerful and viral social media platforms as battlefields.
This is certainly a major reason the era of Mzansi’s glasnost or reform has faltered. South Africa is now on the edge of a downgrade into full junk status or a sub-investment grade rating if the rating agency Moody’s moves in February 2020.
A president in the protector’s cross-hairs
The public protector’s true firepower, though, was kept for Ramaphosa.
For almost all of 2019, Mkhwebane has trained all weapons at Ramaphosa to reveal perhaps her true purpose. Former DA leader Mmusi Maimane offered Mkhwebane the armour she needed and Ramaphosa’s son Andile was the guileless aide.
In November 2018, Maimane launched a complaint into a Bosasa payment to Andile Ramaphosa, which turned out to be a campaign donation to Ramaphosa’s campaign to become ANC president (CR17).
Mkhwebane initially investigated Ramaphosa for misleading Parliament (he answered the Bosasa question incorrectly and then changed his answer) and that ballooned into a much broader crisis. The public protector used her powers to expand the brief of the investigation radically.
In a testy period in the middle of a testy year, Mkhwebane subpoenaed Ramaphosa’s campaign bank accounts from the Financial Intelligence Centre. By mid-year, these accounts were zinging across WhatsApp groups largely belonging to the State Capture faction of the ANC as news spread of how the campaign had been bolstered by R500-million worth of donations by business leaders keen for an end to the kleptocracy of Zuma.
By July, when Mkhwebane released her report, Ramaphosa’s fledgling presidency was in its first crisis provoked by the release of the bank accounts and also of the leaked emails from his campaign. It was a security and an intelligence nightmare made worse when Mkhwebane released her report. She found that Ramaphosa had misled Parliament, violated the Executive Ethics Code and claimed to have found prima facie evidence of money-laundering of between R800-million and R900-million in the accounts used to fund the CR17 campaign.
The motivation was clear – to place Ramaphosa in the same position that her predecessor Thuli Madonsela had placed Zuma in when she filed her final report into the spending at the president’s private estate of Nkandla. This was the cherry on the sabotage pie.
That report is now before court after Ramaphosa successfully interdicted it and Mkhwebane from implementing her remedial action which included instructing the national director of public prosecutions, Shamila Batohi, to start investigations into the money-laundering findings. (Batohi sent a polite letter to Mkhwebane saying that they enjoyed contiguous independence and that Mkhwebane could not tell her what to do).
2020 – checkmate?
The hidden dragon to Mkhwebane’s crouching tiger may turn out to be her former COO Basani Baloyi, whose contract was summarily ended under the guise of a failed probation.
In court in November, Baloyi’s application to have her axing overturned provided an X-ray picture of how Mkhwebane operates and of the games she plays.
After being axed, Baloyi, a bureaucrat who sticks to the rules, turned to lawyer Eric Mabuza, who has helped Old Mutual CEO Peter Moyo turn the screws on his former employer. Though she only started at the public protector’s office this year, Baloyi got a whiff of what was happening.
Baloyi became suspicious when the institution’s CEO, Vusi Mahlangu, a former deputy director-general of the Department of Land Reform and Rural Development, instructed her to remove his name from a report which fingered Minister Gugile Nkwinti. Mahlangu and Nkwinti had fallen out and Mahlangu found refuge as a right-hand man to Mkhwebane.
Baloyi started asking questions about why there was a rush to finalise a report into Nkwinti and she noted when Mkhwebane excised Mahlangu’s name from a critical interim report the public protector was about to issue.
Then she began to save some questionable WhatsApp messages Mkhwebane had sent to her. Now no longer in the same WhatsApp group, Baloyi blew the whistle and presented the messages in court, finally outing Mkhwebane in a public forum as a saboteur. On May 26 2019, Mkhwebane sent Baloyi a message about Gordhan.
It read: “Coo, I worked with few people to deal with the sabotage of the [Pravin Gordhan] camp. The notice is almost ready for rogue [the rogue unit report], will issue this week and report will also be issued in the manner I will determine…The notice for the President [the report into the CR17 donations] is also ready, will call him this week to discuss the notice. It is not about you but one has to play chess.”
In that single WhatsApp message, Baloyi revealed Mkhwebane’s game – in the lines “I worked with few people”…
It revealed how Mkhwebane is deploying her power or abusing it, as the former COO says in her court papers. For example, she says reports into Gordhan and Ramaphosa had to be fast-tracked in terms of laws governing her office, but Baloyi pointed out that investigations under the same law into other politicians had been put on the slow track. These included investigations into politicians associated with State Capture, including Bathabile Dlamini (cleared in October 2019), Faith Muthambi, Tina Joemat Pettersson, Deputy President David Mabuza (cleared in May 2019) and Zuma himself.
In her response to Baloyi, Mkhwebane reveals how she understands the role of a public protector as a player in a game.
“[O]ne of the key and inherent requirements of running the office of the public protector is to devise strategies to counteract the guaranteed games played by very powerful people and institutions under investigation to frustrate the work of the public protector at every twist and turn…”. In other words, for her, the office is not about protecting the public, but is instead part of a giant chess game. Zuma’s favourite game is chess.
Judgment is reserved in the Baloyi case – she wants her job back.
In her own words in legal papers, Mkhwebane says, “That [the operations of her office] is the nature of the inevitable chess game that comes with the territory of the office. Like a literal chess game, it features kings, queens, knights and no shortage of witting and unwitting pawns.”
Parliament has finalised the rules of procedure for the removal of a public protector. The ANC and DA have tabled motions of no confidence in Mkhwebane which suggests 2020 will once again be the year of Mkhwebane, either through the many other investigations she is still sitting on or through a potential hearing at Parliament. DM
* This article does not include updates regarding Mkhwebane over the past 10 days.
SIDEBAR: A view from the public protector
Daily Maverick asked Public Protector Busisiwe Mkhwebane to give her assessment of how her year has gone and to answer the allegations of political partisanship in her work in 2019. She answered through her spokesperson Oupa Segalwe.
Question: What are the public protector’s highlights of her year?
Answer: On administration, the public protector’s office earned a glowing review from the auditor-general (AG). The office received an unqualified audit opinion and slashed irregular expenditure by R16-million while incurring no new irregularities in expenditure. The AG noted improvements in the areas of internal audit and risk management, implementation of audit action plans and leadership culture, among other things.
Forty-six of the planned 30 investigation reports were finalised, 99% of the caseload was finalised within specified time-frames; 77% of the cases older than two years were finalised and, all in all, just under 10,000 out of a caseload of 14,000 were finalised.
When it comes to meaningful reports, the Toyota Quantum panel vans report is among those that stand out. There has been a groundswell of praise for the report on the challenges posed by the illegal conversion of the panel vans into minibus taxis. These include the complainant, Hennie De Beer, who wrote an emotional email to advocate Mkhwebane, thanking her for intervening in the plight of the commuting public and minibus taxi owners, Santaco president Philip Taaibosch and the former minister of transport Blade Nzimande. Government is implementing the remedial action. But not all matters that come before the public protector end in formal reports.
Others include the case of a retired, disabled police officer, who got 41 years’ worth of pension benefits within a month of raising the matter with the public protector. Today he is free of debt and has the income to afford his needs.
There is also the story of a 98-year-old indigent granny who now has running water two months after she was cut off on the basis of false suspicions that she tampered with the meter. After the office’s intervention, water supply to the granny’s house was restored and the R13,000 bill was written off.
In Gauteng, the public protector ensured that a 62-year-old Johannesburg nurse is paid R200,000 in compensation for an illness she contracted in the line of duty. This was six years after she tried to claim compensation without success.
Contrary to popular belief, these are the kind of cases that are close to the public protector’s heart. Sadly, such cases are not seen as “important” because they are about regular people. The work of this office has been politicised at the expense of the very public which it exists to serve.
Access to services has been enhanced through the roadshows and a partnership with the Department of Justice, so courts act as access points for the public.
Also, during the roadshow, the public protector ensures that she engages people in their mother tongues to spread the word about the office.
Question: From the outside, it looks like the public protector took up the cudgels against state reform. This is in relation to the cases against President Cyril Ramaphosa, Public Enterprises Minister Pravin Gordhan and SARS. The Presidency, the Public Enterprises ministry (and department) and SARS have all been at the epicentre of state reform after the period of State Capture. How do you explain this?
Answer: We should really guard against the penchant to project certain people as inherently incapable of wrongdoing and thus insulate them from scrutiny. Suggestions that complaints against such people must be dismissed out of hand while claims against others must be readily pursued is inconsistent with the concept of equality before the law, which is at the heart of our constitutional order.
The public protector did not go around in search of the complaints that led to investigations and adverse findings against the president, the minister and SARS. She was approached. For instance, the complaint against the president came from the former leader of the DA. Was he also on the “fightback” crusade, one wonders? What should be the focus of public scrutiny is whether there was a case to answer. The moment the matter is reduced to the personalities involved, we lose sight of very important questions of governance and ethics, which should concern all of us.
That said, the public protector dealt with 14,000 matters in the period under review. Matters involving the president, the minister and SARS were just three out of the total.
The public protector calls on the media and civil society organisations, some of which seem to be always at the ready to spring to the defence of the powerful when they are simply being held to account, to also help her office when the poor in whose favour findings are made are left in the lurch by state functionaries who will neither implement her remedial action nor take it on review.
Question: In particular, in relation to being in possession of the bank accounts and the emails of President Cyril Ramaphosa, in relation to the findings related to the #CR17 bank accounts, it is a serious indictment that these got into the public domain. Does the public protector have any idea how this happened?
Answer: There is a flawed notion that, merely because the public protector had obtained these documents (legally) from the FIC [Financial Intelligence Centre] and some of them subsequently found their way into the public domain, they must have leaked from her office. It’s a strange way of looking at the matter. Firstly, the public protector is not the original custodian of those documents. The account holders had access to the information. Their banks where the accounts were held had access to the same information. And so did the lawyers who were assisting the president as well as the CR17 campaign management team.
Having said that, it is strange that some in the media appear to be raising this question given the fact that the press survives on leaks. Every other day, people’s bank records are leaked and published by the media. Why the double standard? Shouldn’t the media be asking why the records are sealed and hidden from the public? Doesn’t the public deserve to know?
Question: Is there anything you want to add related to how the public protector may have aided the battle against State Capture and for reform in 2020 that is not clear to us?
Answer: The claim that the public protector is aiding and abetting State Capture is propaganda spread by those in state affairs who do not want to be held to account. They use their contacts in political circles, in the media and in civil society to peddle this lie. DM
Whale stress levels dropped dramatically after 9/11 due to reduced ocean-borne shipping. This was measured by analysing said whales' droppings.