You know it’s going to be a difficult week when the highlight of your Monday is the chief justice of SA pronouncing that you are merely conventionally terrible at your job rather than criminally incompetent.
Public protector Busisiwe Mkhwebane, however, is determined to look on the bright side of life, and says she is “encouraged” by Mogoeng Mogoeng’s minority judgment, in which he disagreed with his Constitutional Court colleagues that Mkhwebane should pay almost R1m in legal fees incurred by the Reserve Bank in the Absa/Bankorp matter.
I mean, yes, the other two judges did use words and phrases such as “falsehoods”, “abused her office”, “misrepresentation under oath” and “not honest”. And, yes, Mogoeng himself wrote that “it baffles me that she was unable to explain herself even with the benefit of legal representation” and that “the public protector got the law completely wrong”.
But Mkhwebane is definitely focusing on the positives, which, in this case, was Mogoeng stating, in 130 careful pages, that he couldn’t find evidence that the “negligent conduct” of the public protector qualified as “gross”. See? It’s not a turd! It’s compost!
Mkhwebane will also have found comfort in Mogoeng’s reminder to us all that the justice system is not about “crushing” people but rather “teaching” them. I know that some people might be alarmed by the idea of Mkhwebane being paid millions of rands a year to learn the law while she tries to practise it, but I find it a very exciting development.
I have always wanted to experience what it’s like to land a fully laden Airbus A380 at OR Tambo International, but I don’t know anything about flying an aeroplane. Thankfully I now have the legal precedent to slide into that pilot’s seat and make my dreams come true. What’s that screaming coming from the back? That, my friends, is the sound of learning! And best of all, nobody is being crushed. Well, until I land this sucker, upside down, on fire.
Unfortunately for the public protector, however, Mogoeng’s interpretation of the case is not the one that will be recorded by posterity or written into law. When it comes to Constitutional Court judgments, majority rules.
Majority rule is, of course, an idea despised by the EFF, a party that believes representing 5% of SA’s eligible voters makes it the one true voice of nation.
As vocal supporters of Mkhwebane — or at least vocal flip-floppers who will back her, 100%, to the hilt, for at least the next five minutes — the EFF would ordinarily have come out popguns blazing. And yet, at the time of writing on Monday afternoon, their Twitter feed, usually as hot and bothered as a Fighter beaten to the bargain bin at an H&M sale, was eerily silent.
A single tweet from Monday urged supporters to go to an anniversary rally. Two still lingered from Sunday: a denial that Floyd Shivambu has been cavorting through the paradise gardens of Stellenbosch, his fig leaf flapping in the breeze, his eager little hands reaching up for an apple as Johann Rupert hisses, “Yasss”; and a common-or-garden demand that Cyril Ramaphosa steps down as president.
Indeed, the only whiff of the ConCourt ruling appeared on Julius Malema’s Twitter feed, where he let others do the talking for him by retweeting a few carefully worded bits of hypocrisy and fence-sitting.
For the rest, however, the defence of Mkhwebane has been left to a seething online army of cliché mongers and conspiracy ejaculators, which took to social media on Monday to declare that the Constitutional Court is a puppet of White Monopoly Capital. (Say what you like about Bell Pottinger, but Holy Mother of Gurning Pitchfork Wavers, few companies have given their clients that much value for money.) A few also insisted that the judgment against Mkhwebane had been inevitable since it was produced by “white judges”, information that will have come as something of a surprise to judge Sisi Khampepe, who co-wrote the majority judgment.
She might be losing official support, but Mkhwebane remains a fighter. On Sunday it emerged that she has threatened to take National Assembly speaker Thandi Modise to court if parliament tries to remove her from office. To be fair, that threat is a little less scary today than it was on Sunday, what with the Constitutional Court announcing that she doesn’t really have a clue what she’s doing.
But it could still get ugly. Because if Mkhwebane is not a competent public protector, then she is, to paraphrase our chief justice, a learner. And you never, ever, want to get into a fight with a learner. The eye-rolling and name-calling alone are murder.
• Eaton is a Tiso Blackstar Group columnist.
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