Everyone can win against Public Protector – Mkhwebane unhappy with judges’ ‘U-turn’ since she took office

2019-09-09 01:46

Advocate Busisiwe Mkhwebane has long been lambasted for incompetence, but says the odds were stacked against her office from the start.

Public Protector Busisiwe Mkhwebane is looking to meet President Cyril Ramaphosa to “engage on different issues and avoid communicating in the media”.

Speaking to City Press after addressing students at the University of Johannesburg on Friday, Mkhwebane said recent developments, including Ramaphosa’s accusation that her office unlawfully obtained bank records during its investigation into his 2017 ANC election campaign funding, necessitated the meeting.

She said she felt vindicated that the Financial Intelligence Centre set the record straight and clarified that it lawfully provided her office with the records.

Ramaphosa had accused the Public Protector of impropriety and persuaded the Pretoria High Court to seal the documents from the public.

“My attorneys challenged the process which was followed because normally it should have been an application, but in this instance there was no application and the deputy judge president judicially managed the process.”

“I feel vindicated because the FIC is an institution of state which is doing that kind of work.

“The way it was being portrayed was that I might have received the document unlawfully and it is very concerning, especially coming from the highest office,” she said.

During the dialogue session, Mkhwebane heard from student activists that the judiciary seemed captured.

“We have, as young people of this country, watched the courts suddenly dilly dally with legal language, which is something that was not there initially. We knew for a fact that when the former Public Protector made remedial action it was binding until set aside by the court of law, but today that is not the case,” said one of the students.

Mkhwebane told the audience that the judges appeared to have made a sudden U-turn on some of the key legal principles they used to guard jealously during the tenure of her predecessor, Thuli Madonsela.

She said the legal position of the courts regarding the Public Protector had changed radically since she took office.

She said that while she respected the judiciary as one of the pillars of our constitutional democracy, “we also cannot lose sight of the trend which we are picking up as the Public Protector on the judgments which have been issued recently”.

She cited at least seven cases in which the rulings of the court seemed inconsistent, including Nkandla; state capture; the department of agriculture, forestry and fisheries; the Vrede Dairy Project; the SA Reserve Bank, Ivan Pillay and the SA Revenue Service rogue unit.

“In Nkandla, the Constitutional Court held that the remedial action dispensed by the Public Protector was binding until or unless set aside by a court of law. The court went further to say that the Public Protector could direct the manner of implementation of the remedial action and that compliance with it was not optional.”

In the state capture judgment, said Mkhwebane, the Public Protector was said to have the authority to direct a state functionary to exercise its powers.

“The Public Protector could direct the president to establish a commission of inquiry, and it directed the president, Parliament and the National Prosecuting Authority to take certain actions,” she said.

Further, Mkhwebane said, the court refused to grant an interdict to former president Jacob Zuma, citing that granting of such an order would result in unwarranted interference with the exercise of a statutory function.

The court also took judicial notice of the financial constraints faced by the Public Protector and that in law she could abandon an investigation over lack of resources.

“And yet in 2017, following my arrival, it appears the courts drifted away from these principles. The Public Protector now cannot direct other functionaries such as the president, the Hawks, the Special Investigating Unit or Parliament to take certain steps.

“We know that in the Vrede matter the court ignored the meaning of a ‘provisional report’, which is that it is a draft or a working document like a draft assignment which is not yet submitted, and went on to lambast the Public Protector for ‘interfering’ with a provisional report.

“Again, in the Nkandla matter the court stated the importance of the Public Protector’s constitutional mandate and the need for protection of the office’s powers in order for its office to be effective.

“However, just this year, three interim orders were obtained against the Public Protector. As things stand now, for anyone to successfully challenge the powers of the Public Protector all they need to do is show up to court and they will be granted the relief they seek.

“The Public Protector was lambasted for even exercising its constitutional right to litigate, such as to oppose an interim interdict. You are now lambasted for even opposing a matter, which does not mean you are fighting, but you want to bring your side of the story or you want to assist the court to come to a different conclusion.”

Strangely, said Mkhwebane, Madonsela opposed an urgent interdict launched by both Zuma and former minister Des van Rooyen and “she was not criticised for this because the courts understood that she had the right to defend her reports and a principle of law”.

Regarding her withdrawal of an appeal against a high court judgment, Mkhwebane said her office had already served papers in the high court to apply for condonation to seek leave for appeal in the Supreme Court of Appeals, which had been her initial preference.

She said the registrar at the Constitutional Court requested consent from all other parties before the withdrawal could be processed, and these have been obtained except from Ramaphosa.

“It is for the court to decide, but it is very strange why the president would refuse the withdrawal. It would help because it is the very Constitutional Court which said the remedial action was binding.”

ANC secretary-general Ace Magashule told City Press last week that a statement attributed to a study group of the party in Parliament, which appeared to support the process to investigate Mkhwebane’s fitness to hold office, was misleading.

“There is no study group or anybody who can talk on behalf of the ANC. The ANC talks for itself. If we have to have a position we will have a position of the ANC,” said Magashule.


Has the Public Protector been unfairly vilified or is the call for Busisiwe Mkhwebane to vacate office warranted?

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April 5 2020