Connect the dots on Mkhwebane, SA
At the start of the year, not long after she assumed office, new Public Protector Busisiwe Mkhwebane voiced concern at a developing mistrust of her office. She said then that she needed the support of all stakeholders for her office to function effectively. She thereafter spent months meeting stakeholders and consulting about her mandate.
Being open to consultation and a willingness to listen to what people have to say about the office are important. But at the end of it all, the Public Protector will be assessed on the findings her office makes. This week she did not do her office any favours when she went way beyond the remedies requested by the complainant by recommending that Parliament pass legislation to change the powers of the SA Reserve Bank.
By now all the legal arguments have been made about why she has misdirected herself. Both Absa and the Reserve Bank are appealing the findings and it very much looks like she will, on appeal, lose her first major case. Her leap of judgement in making rulings on matters she was not required to adjudicate has left many wondering why she would sommer do that. It seems as though we might have to look at tiny factors around her to draw our own conclusions.
Remember one of her first acts was to ask that the office’s TVs be switched to Gupta channel ANN7. A small thing maybe, but significant given the context since.
On Sunday, May 28, when City Press and the Sunday Times broke the first stories based on emails exposing how ministers and government officials were acting on instructions from the Gupta family, there was a curious tweet from the Public Protector.
She tweeted: “Gullible describes an overly trusting person who tends to swallow the stories he or she hears whole.” That should not be too difficult to decipher. She was saying don’t believe these stories, plain simple. Now why would an impartial Public Protector do that? On Wednesday the Mail & Guardian reported that curiously, when releasing her report, she did not send it to the original complainant, Paul Hoffman. Instead the beneficiary of her largesse was none other than Andile Mngxitama’s Black First Land First. Again, I ask, why is that? This organisation’s members went to the Gupta home to protect them from protesters. The emails have also revealed that Mngxitama had requested funding from the Guptas. Connect the dots, South Africa.
As Public Protector, she is in the same position as a judicial officer, such as a judge, about whose impartiality our laws are very clear. There should never be a whiff of political bias. So can we trust Mkhwebane to impartially execute the mandate of her office for the next six years?
In a case involving the SA Rugby Football Union in 1999, the Constitutional Court ruled that “the question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel”.
I submit we are quickly moving towards a situation where she will not pass muster.
Can we trust Mkhwebane to impartially execute the mandate of her office?