Hard to fathom

WE HOPE Public Protector Busisiwe Mkhwebane will be taking a good, hard look at herself over the next few days. The general feeling is that she has messed up badly in her first big case.

Many will be saying she deserves whatever flak she gets.

There was a touch of arrogance in the way she pronounced on her investigation – involving the South African Reserve Bank (Sarb), and Absa.

Her instruction to Parliament to amend the constitution so that the mandate of the Reserve Bank could be changed was greeted with disbelief, as was her ruling that a R1.125 billion loan to Bankorp in the apartheid years be recovered from Absa. Disbelief turned to anger. Experts told Mkhwebane her ruling was incorrect and unconstitutional. And the Sarb, Absa, the minister of finance and Parliament all threatened legal action against her.

Her response went along the lines of “I’ll see you in court.”

There is a disturbing tendency in Parliament, state-owned enterprises and some chapter nine institutions, to run to court to defend themselves when common sense says they stand little chance of winning.

AND SO it proved with Mkhwebane.

It is hard to fathom what made her believe she could instruct Parliament to change the constitution – and then change her mind.

In papers delivered in court, she said: “I accept the powers of public protector are subject to the constitution and the law. It is not possible that the constitution would confer a power to the public protector to undermine other provisions of the constitution.”

“The power to amend the constitution is exercised at the discretion of Parliament and not under dictation by any other body,” she said when withdrawing her court challenge.

What she appeared not to know is elementary stuff – Constitution 101. We find it incredible that our public protector seemed blissfully unaware of this.

When Mkhwebane took over as public protector from Thuli Madonsela, many were sceptical. But we believed she deserved a chance.

She’s now had that chance – and she’s failed it.

Last week she had a difficult job. From today, it became 10 times harder – and she’s only got herself to blame.