Stephen Grootes’ analytical piece published on 04 March 2019 under the headline “Busisiwe Mkhwebane: How to Ruin a Chapter Nine Institution in 28 Months” is replete with uninformed views, factual inaccuracies, misrepresentations and insults. To say it is a savage attack on the person of the Public Protector would be putting it mildly.

Ignorantly, he writes that taking the Public Protector’s findings on judicial review is indicative of organs of states’ loss of confidence in the institution, and that such action came with the arrival of Adv Mkhwebane in October 2016. 

He claims that organs of state which fail to comply with her directives do so because she does not enjoy civil society support, unlike her predecessor, Adv Thuli Madonsela. He suggests that this too is a trend whose advent coincided with Adv Mkhwebane’s assumption of duty and implies that this kind of conduct is justified. 

But of grave concern are the insults. Among the raft of scornful slurs in the article are that Adv Mkhwebane is incompetent, biased, part of a campaign to weaken the National Treasury, a criminal or at least a servant of criminals, and that she has damaged the office of the Public Protector beyond repair. These claims are baseless. Some of them border on contempt of the Public Protector, which according to the Public Protector Act, is no different from contempt of court – an offence as contemplated in Section 11 of the Act.  

In penning the article, Grootes, who admitted seven years ago during the launch of his book, SA Politics Unspun, that the book contained several factual inaccuracies, ignored information which is available online in annual reports, and which has been shared on public platforms such as parliamentary portfolio meetings. I have taken the liberty to bring to light this information.

First, the upward trend in applications for the review of the Public Protector’s reports is a direct result of – and began shortly after – the Constitutional Court ruling on 31 March 2016 (more than six months before Adv Mkhwebane’s appointment) that the Public Protector’s remedial action is binding unless set aside by a court of law. Accordingly, by the time Adv Mkwebane took the wheel, there were already 16 applications for review of our investigation reports, which had been issued by Adv Madonsela.

Second, erring and/or having an investigation report taken on judicial review does not demonstrate incompetence or warrant removal from office. Court judgments are overturned and set aside time and again, and this has never been grounds for pronouncements on the competency of judges or served as a basis for their removal from the bench.

Third, at least two Public Protectors who served prior to Adv Mkhwebane have also been at the receiving end of scathing judgments from the courts. The so-called Oilgate matter in respect of Adv Lawrence Mushwana and the National Empowerment Fund, South African Bureau of Standards and Hluhluwe Imfolozi Game Park cases, with regard to Adv Madonsela, are cases in point.

Fourth, some of the 38 investigation reports that have been ignored by organs of state, prompting Adv Mkhwebane to name and shame them in an attempt to appeal to their conscience, predate her appointment.

Sixth, Adv Mkhwebane opted to not oppose the court action against her remedial action on the mandate of the Reserve Bank in the ABSA/CIEX case, after, with hindsight, acknowledging that the remedial action could have been phrased differently so as to not come across as interfering with the trias politica doctrine. 

Seventh, she picks and chooses which review applications to oppose because her office is under-resourced. The office’s legal services budget during the year in question was a meagre R4-million. Some organs of state spend as much as R300-million annually on legal services. That equals the Public Protector’s annual budget. 

Eighth, in the 28 months that Grootes suggests Adv Mkhwebane ruined the office, she had dealt with well over 30,000 complaints and finalised more than 24,000 of those (these figures have since more than doubled). 

Examples of matters in which a significant impact was made in the lives of ordinary people abound. There are several so-called “high profile” cases in which she made adverse findings against sitting ministers, who, as a matter of fact, went on to lose their position in Cabinet as a direct result of her findings.

Had Grootes taken this information into account, his analysis could have passed muster with paragraph 7 of the Press Code under the category of “Protected Comment”, which gives writers carte blanche to opine robustly “… as long as [their work] is without malice… has taken fair account of all material facts that are either true of reasonably true”. 

Moreover, had the opinions editor at Daily Maverick “[done] enough to ensure that [the publication] was not abused by a person whose aim it was to denigrate”, as established in the Press Ombudsman’s ruling in the case of Sonke Gender Justice v City Press, News24, we would not be here.  

Adv Mkhwebane is not above scrutiny. Her only quarrel is that any criticism must be executed with some degree of even-handedness, with due regard to facts and avoidance of unnecessary harm. DM

Oupa Segalwe is the Spokesperson for the Public Protector South Africa.

This Right of Reply is published following the conclusion of a protracted Press Council process.  Segalwe submitted a complaint to the Press Council after Daily Maverick declined to publish his submission unedited, arguing that it was an attack on the person of Stephen Grootes instead of responding to the issues he raised. 

This Right of Reply is an edited version of the original. It is being published following a ruling by the Press Ombud and the subsequent finalisation of an appeals process on 25 August 2020 in which Daily Maverick successfully appealed an earlier Press Ombud ruling that implied that it had breached clause 1.8 of the Press Code. In finding in favour of Daily Maverick’s appeal, the panel’s Judge Bernard Ngoepe found that: “there never was a complaint in terms of clause 1.8. in the first place. The Ombud’s Ruling dated 11 December 2019, that the appellant breached clause 1.8 of the Press Code, as well as the sanction imposed, are hereby set aside.”

Clause 1.8 seeks,” if practicable, the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated”.

The Judge ruled that Segalwe needed to submit his reply within 3 days of the appeal ruling, and “upon the parties agreeing on the content thereof for publication, immediately advise the Director of the Press Council accordingly who will then determine the date for the publication”.

To see the full Appeal ruling, please visit the website here.