“She is the embodiment of a biblical David, that the public is; who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are. The public protector is one of the true crusaders and champions of anti˗corruption and clean governance.”
These words on the role of the public protector, penned by former chief justice Mogoeng Mogoeng, are particularly pertinent in the week in which Busisiwe Mkhwebane has been found guilty of misconduct and incompetence following a parliamentary inquiry into her fitness to hold office.
Mogoeng wrote those words in the seminal Nkandla judgment against constitutional delinquent Jacob Zuma — a case that cemented the reputation of the Chapter 9 institution in law and in the public eye as a force for justice and against state excess.
It’s a far cry from Mkhwebane’s time at the helm — a reign that’s drawing ever so slowly to a close. Her tenure ends in October — but the stage has now been set for her impeachment.
The parliamentary inquiry, which suffered numerous delays and false starts for more than a year, held its last sitting to finalise its draft report — containing its findings against Mkhwebane — in a marathon nine-hour session on Sunday.
After being found guilty by that committee, Mkhwebane will now be given an opportunity to respond before the report is finalised and tabled in the National Assembly. It is likely to be adopted there; in a rare moment of bipartisanship, the motion to remove Mkhwebane, proposed by the DA, received support from a large number of ANC MPs.
The public protector is one of the true crusaders and champions of anti˗corruption and clean governance
— Mogoeng Mogoeng
It’s in the ANC’s interest to ensure Mkhwebane is removed. She is, after all, a reminder of Zuma’s debilitating game of state capture.
The Mkhwebane saga is particularly embarrassing for the party, given the alacrity with which it appointed her once Zuma had made his support for her clear. The party’s parliamentary caucus was quickly whipped into line.
When President Cyril Ramaphosa ascended to the presidency declaring a “new dawn”, Mkhwebane’s tenure had only just begun. And so she remained, an apparent remnant of the Zuma faction, and emboldened by the precedent-setting Nkandla judgment, which underlined the state’s obligation to act on the public protector’s recommendations.
The previous public protector, Thuli Madonsela, is almost sanguine on the matter. “The fact that my successor was investigated is not a big deal on its own — I mean, it could be done by a rogue government,” she tells the FM. “I think what is concerning and where the damage is, [is] that she has been found to be someone who does not understand the constitution.”
This much was clear from the first contentious report issued by Mkhwebane — on the R1.13bn “loan” that the Reserve Bank provided to Bankorp Ltd between 1985 and 1991. It was produced after she held an “off the books” meeting with Zuma and members of the State Security Agency.
In her report, Mkhwebane stunned many South Africans by recommending a constitutional amendment to the mandate of the Bank. The matter was challenged all the way to the Constitutional Court, which upheld a high court finding that Mkhwebane did not fully understand her constitutional duty to be impartial and to conduct herself without fear, favour or prejudice.
The second issue that Madonsela flags revolves around “a lack of independence ... These institutions are all about integrity and independence, that is what they are about. And, of course, competence.”
Diplomatically, she says the parliamentary committee seems to have made similar findings about Mkhwebane as the courts did.
One of those cases is the investigation into the funding of Ramaphosa’s campaign for the ANC presidency in 2017. It was one of several early high-profile investigations that were set aside by the courts — and one focused on by the parliamentary inquiry.
Questions of bias and whitewashing have swirled around Mkhwebane in other cases too, including the Vrede dairy farm matter, which allegedly involved former ANC secretary-general and Zuma ally Ace Magashule. Evidence before the committee suggested Mkhwebane had gone so far as to instruct investigators not to make adverse findings against the senior politicians involved.
She did act like a henchman of sorts
— Thuli Madonsela
With Mkhwebane now on the ropes, the key question is the extent of the damage her tenure inflicted, and whether the office can rise from the ashes.
Madonsela certainly believes so. “There has been some damage,” she tells the FM, “but I don’t think it’s fatal.”
There could be damage from a “brand management perspective”, she adds — the result of the numerous court judgments against Mkhwebane, along with the committee’s findings. But she believes the foundation laid by previous public protectors has rendered the office “pretty resilient”.
“They built an institutional culture of independence, excellence and one that was apolitical,” she says. “I know there has been that critique, but I don’t remember getting there and finding any staff member who was politically inclined.”
In her view, part of the solid foundation of the office relates to its staff — they’re the true asset when it comes to turning around negative public perceptions created in the most recent era. (Mkhwebane was found guilty by the committee of misconduct in the treatment of her staff.)
“I think the office has been quite resilient not because of one specific person, but because a good foundation was laid ... an apolitical culture was laid ... and that culture can be resuscitated,” she says.
This will be a task for Mkhwebane’s successor. Her deputy Kholeka Gcaleka, currently acting in the post, is among eight candidates shortlisted by a parliamentary ad hoc committee for the position. The others are advocates Tseliso Thipanyane, Lynn Marais, Oliver Josie and Tommy Ntsewa; magistrate Johannah Ledwaba; pension funds adjudicator Muvhango Lukhaimane; and Prof Boitumelo Mmusinyane.
Madonsela says the candidates are impressive, but also “youngish”. “I was youngish too when I took up that post,” she laughs.
Her advice to the next protector is to “trust your staff”. Taking staff along to crucial interviews and meetings, she says, “will protect you from politicians seeking to potentially influence you, as well as [influence] the staff themselves. Also always have more than one investigator on big cases — this will protect the investigation from being influenced, but will also shield individual investigators from harm.”
Madonsela recalls, for example, how investigators didn’t want their names on her state capture report, fearing reprisal from the Zuma faction and their benefactors, the Guptas.
She also advises would-be public protectors to “have lunch with your predecessors and consult them from time to time”.
Her own relationship with Mkhwebane was cordial initially. But it soured quickly when Mkhwebane laid a charge against her, apparently at Zuma’s behest, for “leaking a document”. Relations took a further turn for the worse when Mkhwebane’s legal counsel in the parliamentary inquiry sought to embarrass Madonsela and “put [her] on trial” before the committee.
“She did act like a henchman of sorts,” Madonsela says.
Among those who will probably be glad to see the back of Mkhwebane are the employees in her office, particularly those represented by the Public Servants Association (PSA). Members of the union provided evidence to the committee on Mkhwebane’s conduct during her tenure — and it was far from flattering, with direct accusations that she was pursuing an agenda.
PSA general manager Reuben Maleka has already welcomed the committee findings, saying Mkhwebane’s tenure was a difficult time for many union members. Gcaleka, he adds, has a more open-door policy.
“We have received not a single complaint, there has been no intimidation or harassment, so things have smoothed out somewhat.”
Maleka says staff are eager to close the Mkhwebane chapter, and he expresses hope that her successor will rebuild and place the crucial office back on track.
It’s likely that Mkhwebane will continue fighting, and pursue further litigation against impeachment. She did, after all, try to tarnish the name of committee chair Richard Dyantyi, with accusations by her husband that the late ANC MP Tina Joemat-Pettersson attempted to solicit a bribe on his behalf — an allegation he has denied.
But it seems clear that she is now just a few steps away from the end. After likening herself to the biblical David, she has emerged, rather, as the treacherous Judas.
The office of the public protector is one of the democratic safeguards bestowed on South Africa by the constitution. The Mkhwebane saga, however, shows just how damaging it can be in the wrong hands.
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