Con­nect the dots on Mkhwe­bane, SA

CityPress - - Voices - Ra­pule Ta­bane voices@city­press.co.za

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?

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