Public protector Busisiwe Mkhwebane is, undoubtedly, under siege.
SA’s highest court has ruled that she acted in bad faith and with dishonesty in her investigation into the apartheid-era bailout granted by the Reserve Bank to Bankorp; she faces the prospect a career-ending court bid to have her struck from the roll of advocates; a record number of her reports are the subject of legal review; and the DA is fighting for a parliamentary inquiry into her fitness to hold office.
But, according to Mkhwebane, these travails do not represent the greatest threat to the office she was entrusted to lead nearly three years ago. That threat, she has told the Pretoria High Court, lies in President Cyril Ramaphosa’s bid to stay the “appropriate disciplinary action” she ordered him to take against public enterprises minister Pravin Gordhan over the early retirement she has found he unlawfully authorised for former Sars commissioner Ivan Pillay.
“It is no exaggeration to state that the granting of the relief sought might lead to an effective blunting or shut down of the office of the public protector,” Mkhwebane stated in court papers. “Should the approach adopted by the president prevail, it will take the country backwards and serve as an incentive for would-be offenders to file unmeritorious review applications with the hope of escaping effective remedies.”
Mkhwebane’s affidavit is littered with such warnings, and dark observations about Ramaphosa’s alleged friendship with Gordhan
The intensity of the alarm raised by Mkhwebane is unparalleled by comparison to her responses to some of the many other legal challenges brought against her — and arguably may speak to the growing political tsunami that threatens to engulf what should, ordinarily, be a routine and unremarkable legal application by the president.
Ramaphosa has argued that he believes both of Gordhan’s legal challenges to Mkhwebane’s reports on the so-called Sars rogue unit and the Pillay early retirement carry a degree of legal weight — and that he will risk making an unreasonable decision about Gordhan if he does not wait until they are finalised, before acting against him.
His argument appears to make sense. But Mkhwebane simply isn’t buying it.
While the public protector has previously agreed to court orders that stay the implementation of her remedial action, pending the outcome of reviews of the reports that contain them, she is refusing to do so in this case. Primarily, her reasons for this appear to centre on the personalities involved: the president and Gordhan, one of his most trusted ministers.
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“To risk a constitutional crisis for the sake of servicing one individual from the possible inconvenience of an unwarranted reprimand, warning or even a reversible fine or salary sacrifice, flies against any notion or reasonableness and/or rationality,” Mkhwebane states.
Essentially, she seems to be suggesting that taking undeserved action against Gordhan is preferable to Ramaphosa being seen to not accede to her remedial action — even if that remedial action is the subject of legal challenge. Mkhwebane further makes it clear that she does not believe that Gordhan has any prospects of success in challenging her Pillay report, and should therefore be punished now.
“To delay the implementation of the remedial action while noting the findings is unhelpful because it essentially means that the president is allowing the state of maladministration and lack of accountability, as found in my report, to continue,” she says.
Mkhwebane’s affidavit is littered with such warnings and dark observations about Ramaphosa’s alleged friendship with Gordhan. She further speculates about the president’s own personal motivations in asking for a stay of the remedial action she ordered him to take against Gordhan, while preparing for his own legal challenge to her report on the R500,000 donation his ANC election campaign received from the CEO of the corruption-accused Bosasa group.
Mkhwebane has previously demanded that Gordhan prove his claims that her Pillay report was driven by political motives and aimed at unseating him from the cabinet. Now, ironically, she is straying into similar territory with her conspiratorial hints about the president and his motives.
This application is no longer about the president’s constitutional obligations to the public protector, but rather a full frontal attack on his perceived closeness to Gordhan.
This case is now being defined not by the muted language of the law, but the messy rhetoric of politics.
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