Mkhwebane should quit

After reports that Public Protector Busisiwe Mkhwebane has received a tongue lashing, and a punitive costs award, from the High Court in Pretoria in the successful review proceedings that have led to the setting aside of remedial action she directed in her Ciex report, calls for her resignation are merited. She should consider the fate of Jacob Zuma carefully and resign forthwith.

The court said: “The public protector acted in a manner inconsistent with the provisions of the Constitution and the Public Protector Act by placing a duty on the Special Investigations Unit to reopen the investigation and to recover the misappropriated public funds from Absa. She exceeded the powers entrusted to her by the Constitution and the Public Protector Act.”

The thrust of this passage is arguably equally applicable to much of the remedial action in Thuli Madonsela’s State of Capture report. It is vulnerable to review proceedings once the Zondo commission of inquiry swings into action. The argument the Guptas will advance is that it is not “appropriate remedial action” to direct the chief justice to select a commissioner (he is not an executive functionary) and the president to follow the orders of the office of the public protector in establishing the commission of inquiry instead of using his constitutionally conferred discretion.

Madonsela will search in vain for a provision in her enabling legislation or in the Constitution that would justify the remedial action she took in the State of Capture report.

Zuma has been well advised, for once, to take the dismissal of his initial review of the State of Capture report on appeal.

The net effect of the quoted findings against Mkhwebane is to render the Zondo commission a dead or severely lame duck.

Paul Hoffman, SC Director, Accountability Now