One of the most protracted public wars of attrition finally ended this week when the National Assembly voted to dismiss Busisiwe Mkhwebane from the post of public protector.
Mkhwebane’s tenure since 2016 has been characterised by multiple conflicts with politicians who accused her of targeting them unfairly and letting her favoured politicians off scot-free. To her detractors, reports that were taken on review together with scathing judicial comments about her probity, were sufficient reasons for her removal from office. To her supporters, the number of successfully reviewed cases as a fraction of all reports completed under her tenure meant any attempts to remove her represented a political witch-hunt.
Her approach to her defence, which involved litigation and ended up running for over a year, was costly. The exact costs remain a matter of speculation, but according to the public protector office at least R30m was paid in her defence, which was primarily led by advocate Dali Mpofu, who referred to the fees as “peanuts”.
In an utterance to support the impeachment vote DA MP Annelie Lotriet indicated that R160m had been spent on the process associated with the ultimate removal of Mkhwebane. If accurate this staggering number would represent a new dilemma for the country. In recent years, the type of accountability mechanisms that previously existed in theory and were never actually used, finally saw the light of day.
At the Judicial Services Commission (JSC) judges John Hlophe and Nana Makhubele have followed the paths trodden by Willie Seriti and Hendrick Musi, who have been subjected to misconduct hearings before the JSC. The Zondo state capture commission brought to the stand many high-ranking politicians to attempt to explain their actions.
Through these developments, a question of financial culpability has remained unresolved. Core to the challenge is the elusive distinction between matters relating to one’s conduct in office, and matters relating to conduct against the office one occupies. For an institution like the public protector, the nature of the job makes litigation a pervasive risk that must be funded.
In recent years amendments to the Public Audit Act have resulted in a new possibility for public servants who fail to follow-up on key issues to face the prospect of being held directly accountable for financial losses. For judges whose work is taken to the JSC for it to assess misconduct allegations, there is a link between the job and the JSC process that is linear enough for them to expect that their employer will cover their costs of defending the fruits of their labour.
For some people, the idea that one can be accused of acting at odds with the mandate of an institution and still have your legal fees covered by the same institution seems puzzling. This is why the decision to recover fees paid by the state on behalf of former president Jacob Zuma found some resonance with the courts. However, cases that are clear cut in relation to the question of being less-than-competent in your job, versus actively working against the mandate of the office itself, are going to remain quite rare.
In Mkhwebane’s case, the fact that she was dragged into the inquiry meant parliament had to bear the costs of the logistics, and because she was being questioned regarding her conduct in an official capacity the office of the public protector covered her legal costs. Zondo’s parade of the accused transcended the entire political and business spectrum, and since no-one wanted to be accountable for anything, the public purse ended up with a bill of over R1bn.
The state now has to engage on the question of whether such costs can be contained in light of the pressure on public resources. If not, we may well do better in holding the errant accountable, but financing the quest for the truth will become ever more expensive.
• Sithole is an accountant, academic and activist.
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