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In her ruling in the case between the Public Protector and the DA, Judge Ronel Tolmay quoted the Constitutional Court’s seminal judgment on the Nkandla matter.
The judgment, which confirmed the powers of the office, had been prompted by then National Assembly speaker Baleka Mbete, as well as then president Jacob Zuma and some of his ministers’ defiance of then Public Protector Thuli Madonsela’s findings and remedial action orders.
Penned by Chief Justice Mogoeng Mogoeng, the unanimous judgment said that “the Public Protector is thus one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in state affairs, and for the betterment of good governance”.
It went on: “The tentacles of poverty run far, wide and deep in our nation. Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average citizen.
“For this reason, the fathers and mothers of our Constitution conceived of a way to give even to the poor and marginalised a voice, and teeth that would bite corruption and abuse excruciatingly.”
The justices said the office should be “one of the true crusaders and champions of anticorruption and clean governance”.
That was then, a time when South Africa had a real Public Protector, someone who exhibited the qualities that Mogoeng and his fellow justices spoke about.
It was only three years ago – 2015 – but it seems like aeons have passed.
Today, we have a Public Protector who has not only eroded the standing of the office, but who seems hellbent on using it to protect the powerful instead of the marginalised, and who wants to make sure that corruption is not bitten.
Last week, Judge Tolmay gave Busisiwe Mkhwebane a judicial hot klap.
The judgment related to Mkhwebane’s decision to underinvestigate the Estina dairy farm matter, in which R342 million of the state’s money meant for uplifting emergent farmers was diverted to the Gupta empire and entities associated with it.
The Estina project is one of the most horrendous cases of corruption witnessed in the Zuma era.
It was a case of stealing directly from the poorest of the poor, with not the smallest care.
Among the fingerprints found at the Estina crime scene were those of former Free State premier and now ANC secretary-general Ace Magashule, a zombie called Mosebenzi Zwane and other senior members of that administration.
Although Zuma’s fingerprints were not at the scene, they may as well have been there because it was his crew that pulled off the heist before depositing the money into a vault in Saxonwold.
Tolmay’s frustration comes through in her judgment as she laments the fact that, even though Madonsela had submitted her preliminary report when her term ended and Treasury had done its own damning investigation, Mkhwebane sought to either ignore these or undo them.
In the case of Madonsela’s report, she went out of her way to edit out the damning bits and soften the proposed remedial actions.
When it came to the investigation itself, she did the bare minimum. She even failed to interview the victims of the thievery and the bigwigs implicated in the theft.
This despite DA leader Mmusi Maimane giving her the witnesses on a silver platter, complete with names and phone numbers. He even introduced her team to their leadership.
“The beneficiaries were the people who should have taken centre stage in this investigation as they were the people, the vulnerable ones, for which this office was specifically created, and who were deprived of an opportunity to benefit and better their circumstances. Instead, they were ignored and their interests were relegated to a mere peripheral issue,” wrote Tolmay.
Tolmay’s judgment is littered with tough language, such as that Mkhwebane’s behaviour pointed to either “ineptitude or gross negligence in the execution of her duties” and about how “she missed the point completely”.
The words and phrases included ‘clearly irrational’; ‘inexplicable’; ‘failure to execute this simple task’; ‘some ulterior purpose’; and many other choice terms.
Tolmay charges that Mkhwebane’s “failure to execute her constitutional duties ... points either to a blatant disregard to comply with her constitutional duties and obligations, or to a concerning lack of understanding for those duties and obligations”.
Last year, judges Christina Steyn and Nomonde Mngqibisa-Thusi, who set aside Mkhwebane’s findings on the SA Reserve Bank and Absa matter, were just as damning of her.
They even pronounced that she “did not conduct herself in a manner which should be expected from a person occupying the office of the Public Protector”, and did not seem to realise that her office “requires her to be objective, honest and to deal with matters according to the law, and that a higher standard is expected from her”.
They went further and said it had “transpired that the Public Protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice”.
Before the end of the term of the last Parliament, the ANC defended attempts by the opposition to hold Mkhwebane to account.
Maybe in their minds they believed that they were hurting the DA, but that is ridiculous.
The people they were hurting were the poor and vulnerable masses who deserve a real protector.
