The job of the Office of Public Protector is to protect the people from the state.
The office is defined in the Constitution. Its holder is appointed by government; but is thereafter independent of it. It investigates state and governmental improprieties and has the power to take remedial action.
The efficient functioning of the office requires a number of things. In descending order of difficulty, the office holder needs to be independent; have an understanding of the legal powers they possess, the purpose of those powers, and the limitations of those powers; believe in the constitutional framework that created the office they hold; be possessed of a basic honesty; and be willing to turn up for work.
Busisiwe Mkhwebane (“a puppet from Gupta’s kitchen” – Julius Malema), appointed to the role of public protector by former president Zuma, and still nominally in place today, fails to clear even the lowest of these very low bars.
In her early days in office, she was greeted by Zuma (and his minister Des van Rooyen) attempting to interdict the State of Capture Report. This report was produced by Mkhwebane’s predecessor, Thuli Madonsela. The report suggested that the Gupta family was using links with Zuma to capture the levers of government for personal gain.
The public protector had two choices. Either to defend the report, and (on behalf of the public, one might say) press for the Commission of Inquiry into state capture which the report proposed as remedial action. Alternatively, not to oppose the president, and allow the report to be suppressed. Mkhwebane chose not to protect the public, and instead to protect the president.
Over the years that followed, distinguishing her alleged corruption from her incompetence was often difficult.
After Mkhwebane had purported to instruct Parliament to amend the Constitution and change the Reserve Bank’s remit (causing a currency collapse in the process), she was found by the courts to have grossly overstepped her mandate.
They found her to be biased and dishonest in her investigation of a decades-old bailout loan by the Reserve Bank to Bankorp made during the apartheid era.
From claiming expert economic analysis where there was none to misrepresenting the nature of private meetings with president Zuma, there was little about which she did not lie. So numerous were her falsehoods that she was found to have waived personal immunity and was held to be personally responsible for punitive costs.
The Constitutional Court found that Mkhwebane also did not understand her job, including that she was required to be apolitical (not beholden to or working for the government).
Her reports and the remedies she proposed were regularly set aside by the high court and Constitutional Court.
She lost many court cases; including an attempt to stop the National Assembly from starting the process of removing her from office.
After the National Prosecuting Authority brought perjury charges against her for allegedly lying to the courts, Mkhwebane tweeted, “Hopefully I will live to witness a democratic South Africa with a fair and objective justice system. We defeated apartheid, this cruel system shall pass too one day.”
One can only imagine how such a system might operate. Perhaps one where officials like her, and the government appointing her and colluding with her to evade accountability, could be properly held to account, and be replaced through an efficient and expeditious democratic process. In this respect, I share her dream.
But back in reality, it is right to ask, where is the public protector, put in office to protect the public, now? She has requested 11 consecutive weeks of paid leave, and has been given it, on condition that she interrupts her holiday to attend parliamentary hearings on her own misconduct.
She is busy delaying her perjury trial till her term of office ends. Who is protecting the public in her absence? The answer remains the same as it was from the time of her appointment. No one.
* Donen SC is a legal practitioner and listed counsel of the International Criminal Court
Cape Times