Public protector Busisiwe Mkhwebane is focused on multiple politically explosive investigations — against, among other officials, public enterprises minister Pravin Gordhan and President Cyril Ramaphosa.
The outcomes of these probes will inevitably reverberate through the ranks of a deeply divided ANC, where there appears to be growing pushback against Ramaphosa’s campaign for clean governance.
So it should be concerning that Gordhan has repeatedly described Mkhwebane’s investigation into his time as commissioner of the SA Revenue Service as an abuse of her powers, and argued that it is part of a "fightback" against that anticorruption drive.
This also reflects a wide level of distrust, from many quarters, in a chapter 9 institution that is constitutionally mandated to serve as a powerful watchdog against state wrongdoing.
They also follow the intense criticism levelled against Mkhwebane over her invalidated order that the constitutional mandate of the Reserve Bank be changed from a focus on protecting the rand, and accusations that she abused her office in making that order.
The Constitutional Court has yet to rule on whether the Pretoria high court was correct to find Mkhwebane could "reasonably be suspected of bias" in her investigation of the apartheid-era bailout given by the Bank to Bankorp, and to order that she pay an estimated R900,000 of the legal costs incurred in that case out of her own pocket.
The high court expressed concern that Mkhwebane had met the State Security Agency (by which she was employed prior to taking over from Thuli Madonsela as public protector) and the presidency less than two weeks before she released that far-reaching report‚ without disclosing this to the Bank or Absa.
"Having regard to all these considerations‚ we are of the view that a reasonable‚ objective and informed person‚ taking into account all these facts‚ would reasonably have an apprehension that the public protector would not have brought an impartial mind to bear on the issues before her‚" the court ruled.
It’s important to remember that attacks on the office of the public protector are not new. Madonsela was herself the subject of a baseless police investigation before she released a report on how then national police commissioner Bheki Cele was guilty of improper conduct and maladministration. This was in relation to the police’s R500m lease for the Sanlam Middestad building in Pretoria.
Madonsela was further slammed by ANC MPs over her investigation into the unlawful nonsecurity upgrades to then president Jacob Zuma’s Nkandla homestead, with ANC chief whip Mathole Motshekga claiming in parliament that she had "misled the nation".
Her "State of Capture" report was also the subject of multiple legal challenges — most notably by Zuma.
But, unlike Mkhwebane, Madonsela withstood the intensity of that barrage of litigation. And, unlike Mkhwebane, she was never found to have failed to understand her office’s obligation to act with impartiality.
Against that background, it is potentially concerning that Mkhwebane has appealed directly to Ramaphosa to intervene in her standoff with Gordhan, who she accuses of failing to co-operate with her probe by not providing the information and documents she requested from him.
His lawyers have denied this.
As a chapter 9 institution, the public protector is constitutionally mandated to be completely independent of government.
"This is like national director of public prosecutions Shamila Batohi phoning the president and saying: ‘This official refuses to hand himself over, can’t you tell him to co-operate?’" DA MP Glynnis Breytenbach tells the FM. "It is completely inappropriate and deeply unconstitutional."
Breytenbach tried to push for a parliamentary inquiry into Mkhwebane’s fitness to hold office, but this was ultimately voted down by the ANC and EFF.
She adds: "The president cannot and should not respond to this."
What blurs the lines further is that Ramaphosa is himself the subject of investigation by Mkhwebane. The public protector is probing a complaint by DA leader Mmusi Maimane that the president may have deliberately misled parliament about a R500,000 donation his ANC election campaign, received from Gavin Watson, the controversial CEO of corruption-accused facilities management company Bosasa (now known as African Global Operations).
Ramaphosa initially told the National Assembly that his son Andile had received money from the company for services rendered under a consultancy contract.
The presidency later corrected that reply in a letter to National Assembly speaker Baleka Mbete, saying Ramaphosa had been unaware that the money in question was a donation from Watson.
Any potential finding by Mkhwebane that Ramaphosa lied to parliament about the payment — or that he failed to declare a conflict of interest in his relationship with Bosasa — will be powerful ammunition against a president who has been outspoken in his anticorruption rhetoric.
The public protector has previously crashed the markets with her totally unfounded Bank report. As the legal and political storm clouds continue to gather around her office, there may be real reason to prepare for the worst.
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