Opinionista Omphemetse S Sibanda 2 March 2021

It’s high noon for Busisiwe Mkhwebane, but don’t be surprised if she survives

We must not expect the Public Protector to go down without putting up a fierce fight herself or through her admirers in the National Assembly. She has shown she is no pushover and has labelled herself the victim of a witch-hunt and politically motivated action. If you asked me what are the chances that she will be removed – without ignoring the political machinations in the country – I would say Mkhwebane is likely to weather the storm.

Speaker of Parliament Thandi Modise’s announcement that the panel looking into Busisiwe Mkhwebane’s fitness to hold office “has concluded its work”, has set the stage for the country’s first impeachment process for a sitting Public Protector.

“This year [2021] marks the real turning point in her controversial tenure as one of the country’s top corruption busters,” reported Eyewitness News (EWN). The country waited anxiously over the weekend until Monday, 1 March to know the contents of the report by the panel appointed by Modise and headed by former Constitutional Court judge Bess Nkabinde and advocates Dumisa Ntsebeza and Johan de Waal. It had been speculated whether the panel’s finding would be the beginning of the end for Mkhwebane, or solidify her as the “unfairly targeted” Public Protector.

Even Mkhwebane may have asked herself whether Monday would be groundhog day or a day of jubilation and exoneration. I am not talking about the groundhog as in the 1993 romantic film Groundhog Day, because there is nothing romantic about being removed from your office and facing humiliating allegations of incompetence and being unfit to hold office. I am referring to the possibility of the findings casting doubt on her ability to hold office.

If you have watched Groundhog Day, the story of an arrogant TV weatherman, you will remember that a fundamental question is asked that I consider relevant to Mkhwebane as she ponders her future: “What would you do if you were stuck in one place and every day was exactly the same, and nothing you did mattered?”

Mkhwebane has been stuck in one place when it comes to losing judgments and receiving scathing tongue-lashings from judges. High-profile cases Mkhwebane has lost on review of her reports and remedial actions – just between 2019 and 2020 – include Absa-Bankorp; Estina Dairy Farm; Sars “rogue unit”; Cele vs Mkhwebane; CR17 campaign funds; FSCA Report; taxpayer information; and Ivan Pillay’s early retirement. The outcomes were bad for her tenure as Public Protector since they gave weight to criticism that she is incapable, incompetent and has poor knowledge and interpretation of the Constitution, as well as criticism of her fitness to hold office in general.

She has also been accused of perjury and having a poor reputation, and is regarded as a cunning public pacifier following her Estina Diary project report among others. How many punches and bloody noses can Mkhwebane take?

In the report, which is yet to be made available on Parliament’s website, the special panel concludes that Mkhwebane does have a removal-from-office case to answer. According to parliamentary spokesperson Moloto Mothapo, “in its findings, the panel concluded that there is substantial information that constitutes prima facie evidence of incompetence and examples of this included the prima facie evidence demonstrating the Public Protector’s overreach and the exceeding of the bounds of her powers in terms of the Constitution and the Public Protector Act as well as repeated errors of the same kind, such as incorrect interpretation of the law”.

Modise has the unenviable task of scheduling the report for a decision by the National Assembly, which may include instituting a special committee of Parliament that will conduct a full and detailed investigation relating to this impeachment complaint.

Frankly, there is nothing surprising about the panel’s report. Mkhwebane’s tenure as Public Protector was always going to be rocky and controversial. Not only was she thrown in the deep end, as Forbes Women Africa puts it, but she also had big shoes to fill.

The shoes were those of her predecessor, Thuli Madonsela, who was fearless in the fight against corruption and social injustice even when facing the might and rebuff of the shameful ANC machinery in Parliament and being applauded by political parties like the EFF, which has since become her foe. (An EFF statement on 3 December 2013 read that “society must avoid buying into the propaganda that Zuma is being targeted or he is an ‘innocent victim’. These are mere attempts seeking to divert attention from the critical questions on the table, the idea that a man in the highest office has been embezzling public funds for personal gain.”)

Recently made a Knight of the Legion of Honour, Madonsela is widely considered the best incumbent yet to hold the office – the one who triggered the establishment of the Zondo Commission of Inquiry through her State Capture Report of 2016. On the other hand, Mkhwebane received condemnation for saying she was not about to prioritise the State Capture report that she inherited over other issues of national interest. The panel has rubbed salt into the wound, pointing to the credibility of the Office of the Public Protector (OPP) since the appointment of Mkhwebane.

The establishment of the OPP should have helped the public to “take arms against a sea of troubles”, to quote from Hamlet. As noted by the Supreme Court of Appeal (SCA) in Public Protector v Mail and Guardian Ltd, the OPP “provides what will often be the last defence against bureaucratic oppression, and against corruption and malfeasance in public office that is capable of insidiously destroying the nation. If that institution falters or finds itself undermined, the nation loses an indispensable constitutional guarantee.” [Par:6]

It should be a matter of great concern that Mkhwebane is now headed towards making history as the first impeached incumbent of the OPP.

Up to this point, public discourse and opinion on Mkhwebane have been sharply divided, earning her the appellation of Great Divider on the political and legal landscapes. She has enjoyed some support from key political figures in South Africa. Supra Mahumapelo, former North West premier and a key figure in the ANC, was particularly blunt, arguing that she is doing a good job and cannot be removed from office: “There is no way that the ANC in Parliament will support the motion of the opposition in the form of the DA to remove the Public Protector.”

The Black Lawyers’ Association (BLA) has suggested Mkhwebane is a victim of unfair treatment. According to BLA deputy president Baitseng Rangata, there are various instances where case law carried negative comments on judges, but they have not been used to label them incompetent or as solid grounds for concerned judges to be removed from the Bench. Rangata would know, or would be happy to know, that in other jurisdictions judges have been removed from the Bench because of how they presided over and ruled on their cases.

We must not expect Mkhwebane to go down without putting up a fierce fight herself or through her admirers in the National Assembly. She has shown that she is no pushover, to the point that she sought the help of the Constitutional Court to stop what she considers an unfair inquiry into her fitness to hold office.

For example, in 2016 in the US, a Brooklyn Supreme Court judge was found unqualified to be on the Bench by a Democratic Party screening panel. “She’s not the brightest bulb in the courthouse, to begin with,” reported the New York Post. Like Mkhwebane, her problem was that “an abnormal percentage of cases were overturned by higher courts”. Other allegations were that the judge was of poor reputation, offhand, discourteous and apolitical.

EFF leader Julius Malema is strongly of the view that the office of the current Public Protector needs protection: “We must be consistent in the protection of the law; we are not protecting Busisiwe, we are protecting the office. Let the Office of the Public Protector be protected.”

I could not help but notice the flip-flop or the on-and-off support Malema has given to Mkhwebane. “We just took a puppet from Guptas’ kitchen and said, ‘let’s give her a chance’,” he said in 2017.

Fast forward to 2021, Malema made it clear that the EFF will not support any parliamentary motion to remove Mkhwebane. “We’ll oppose this motion, which is a united action by the DA and Ramaphosa faction in the ANC, to the end. We have no doubt that this motion will be defeated,” he vowed.

As one bipolarity axiom has it: the friend of my enemy is my enemy, the enemy of my enemy is my friend — the common enemies here obviously being Public Enterprises Minister Pravin Gordhan because of the court-debunked Sars “rogue unit” allegations, President Cyril Ramaphosa because of the CR17 donations war, and members of the judiciary recently accused by Malema of “believable allegations that some prominent members of the judiciary are on the payroll of the white capitalist establishment”. It is because of such support from political heavyweights, among other things, that there is a view that Mkhwebane is deeply inserted into politics.

If Malema’s support for Mkhwebane and threat to derail the adoption by the National Assembly of a resolution calling for her removal from office are real, may we live in interesting times! Some sections of society may be sympathetic to Mkhwebane, believing she has been done in by a partial, hypocritical and politicised judiciary.

In his book, All Judges Are Political – Except When They Are Not: Acceptable Hypocrisies and the Rule of Law, Keith J Bybee asks whether courts are guided by unbiased legal principle or political interest. He argues “that the public’s half-politics-half-law understanding of the courts not only chips away at judicial legitimacy but also forms an essential part of the current legal order”. Notwithstanding this view, until there is evidence of political corruption in the judiciary and predetermined court judgments against Mkhwebane, the conclusion may be that it’s all noise from self-interested and shallow charlatans.

We must not expect Mkhwebane to go down without putting up a fierce fight herself or through her admirers in the National Assembly. She has shown that she is no pushover, to the point that she sought the help of the Constitutional Court to stop what she considers an unfair inquiry into her fitness to hold office.

This is the time Mkhwebane would have wished that her argument to be granted the status of a judge had won the day. The point made here is that with the Public Protector you need only to establish misconduct, not gross misconduct.

Previously, Mkhwebane labelled herself the victim of a witch-hunt and politically motivated action taken after she issued recommendations in matters involving Ramaphosa and Gordhan. “I am, however, concerned about what appears to be an abuse of state institutions to settle scores,” said Mkhwebane. For Ramaphosa and the ANC, her removal – should the motion be adopted by the National Assembly – may prove to be the start of yet another political firestorm in addition to the Zuma and Zondo Commission saga.

Enough about Mkhwebane for a moment. The propriety of the discharge of functions as Public Protector also came into question during the tenure of one of her predecessors, Lawrence Mushwana, in Public Protector v Mail and Guardian at the SCA. The court found Mushwana acted improperly by conducting an investigation in haste and making a recommendation that could not stand a day in court on review.

Judge Robert Nugent observed that the investigation was a whitewash intended primarily to pacify the public and to absolve the powers that be while exonerating the complainants. Mushwana had not been meritorious in performing his functions and there had been a blatant “paucity of the investigation”, which had been “undertaken as little more than a formality”.

“An investigation that is not conducted with an open and enquiring mind is no investigation at all”, said Nugent [par: 21]. He said “there was in truth no investigation of the substance of the various complaints” [par:140] and “the investigation was so scant as not to be an investigation at all” [141]. Can you spot the similarities with some reactions to Mkhwebane’s reports?

If Mushwana could get away with such scathing criticism and rebuke from the courts, then one may ask, why not Mkhwebane? Allegations of selective consequence management and discriminatory practices against Mkhwebane may be the decisive factors as the special parliamentary committee conducts its detailed investigation into her fitness to hold office.

There is no precedent for the removal of the Public Protector or incumbents of other Chapter 9 institutions, and Mkhwebane’s case will be our first lesson. A look at the Office of the Advocate-General established in 1979, arguably the genesis of the OPP, did not yield any results or guidance on the removal of the incumbent for lack of fitness to hold office. The history of the Ombudsman that replaced the Advocate-General in 1991, and which was abolished in 1995, provided no help either.

Only limited comparative lessons can be drawn from the removal of judges in South Africa. For instance, the acquittal of Judge Nkola Motata by the Judicial Service Commission (JSC) for his drunken utterances, on the other hand, proved that impeachment carries a much higher standard. Motata, whose conduct was unbecoming of a judge, survived the chop because although his conduct was improper, it did not amount to sufficient gross misconduct to proceed with his impeachment.

This is the time Mkhwebane would have wished that her argument to be granted the status of a judge had won the day. The point made here is that with the Public Protector you need only to establish misconduct, not gross misconduct.

If you asked me what are the chances that she will be removed, my answer at this stage – without ignoring the political machinations in the country – I would say Mkhwebane is likely to weather the storm.

Yet, it is always possible the decision will go against her. Also, the events around her may make it difficult for the Legal Practice Council and the newly appointed Legal Services Ombud to look away with regard to questions around her fitness as a legal practitioner and allegations of unethical conduct.

In the end, the rule of law will guide the process to investigate her fitness to hold office and how her final removal, if so determined, must be conducted. Again, we are talking about a process whose continuation to a detailed investigation or final end will be left to the elected politicians as decision makers, some of whom are allergic to accountability and the rule of law. There is a likelihood they will be intimidated into voting a particular way – probably against the motion to remove her from office. DM

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