Pub­lic pro­tec­tor Bu­sisiwe Mkhwe­bane un­der fire

DRUM asked ex­perts if Pub­lic Pro­tec­tor Bu­sisiwe Mkhwe­bane is fit for her role

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IT WAS al­ways go­ing to be a tough act to fol­low. Her pre­de­ces­sor was a me­dia dar­ling, revered in South Africa and lauded across the world as a fear­less cru­sader who went af­ter the might­i­est fig­ures in the land. Ad­vo­cate Thuli Madon­sela trans­formed the of­fice of the pub­lic pro­tec­tor – once a lit­tle-known, low-key of­fice – into one of the most highly es­teemed in­sti­tu­tions in the coun­try.

But her suc­ces­sor has yet to live up to that suc­cess. In fact, it’s fair to say Bu­sisiwe Mkhwe­bane has been a colos­sal dis­ap­point­ment – and even, in some cases, a down­right em­bar­rass­ment.

The EFF has told her to “learn to keep quiet” to avoid fur­ther tar­nish­ing the rep­u­ta­tion of her of­fice. The DA has vowed to “push ahead” in par­lia­ment with ef­forts to have her re­moved.

The Sun­day Times named her their Mam­para of the Week re­cently – this af­ter she sug­gested the scope in the com­mis­sion of in­quiry into state cap­ture be broad­ened, so it didn’t only in­ves­ti­gate the Gupta brothers and their hold over Pres­i­dent Ja­cob Zuma and his fol­low­ers. She “makes a mock­ery of the of­fice that was once the pub­lic’s last hope to hold the pow­er­ful ac­count­able”, the pub­li­ca­tion said.

Mkhwe­bane tried to re­tract her com­ments about the state cap­ture probe. Ini­tially, she said she wanted the com­mis­sion to stretch its in­ves­ti­ga­tion all the way back to 1994 and not only deal with com­plaints in Madon­sela’s State of Cap­ture re­port.

But that wasn’t what she meant, she said later. She wanted al­le­ga­tions to be split into two phases – the first to deal with is­sues in­ves­ti­gated by Madon­sela, and the sec­ond to fo­cus on the state cap­ture com­plaints brought to the pub­lic pro­tec­tor’s of­fice af­ter Madon­sela’s ini­tial re­port.

But ANC pres­i­dent Cyril Ramaphosa wasn’t hav­ing any of it. The in­ves­ti­ga­tion shouldn’t be “con­tam­i­nated” by other is­sues, he said.

An­other ma­jor dis­as­ter was Mkhwe­bane’s call last year for the man­date of the South African Re­serve Bank to be changed in the Con­sti­tu­tion.

Af­ter the bank dragged the pub­lic pro­tec­tor to court, she claimed she’d made a typo in her re­port. It was “an hon­est mis­take”, she said.

So is she do­ing any­thing right? We asked the ex­perts to weigh in.


Pro­fes­sor Pierre de Vos, an ex­pert in con­sti­tu­tional law at the Uni­ver­sity of Cape Town, says he has no proof she’s pro­tect­ing the pres­i­dent. “All I know is [that] her ac­tions, since she be­came the pub­lic pro­tec­tor, sug­gest she doesn’t know what she’s do­ing and she’s com­pletely out of her depth.

“Whether there’s an ul­te­rior mo­tive, I can­not say. But the fact that she can­not do her job prop­erly and isn’t com­pe­tent is clear from her ac­tions.”

Phep­helaphi Dube, di­rec­tor of the Cen­tre for Con­sti­tu­tional Rights, says Mkhwe­bane has been known to make state­ments and take ac­tions that can be viewed as be­ing sup­port­ive of Zuma.

But, she says, Mkhwe­bane hasn’t al­ways been on the pres­i­dent’s side. “For in­stance, she op­posed him when it came to de­cid­ing who should chair the com­mis­sion of in­quiry into state cap­ture due to the fact that [Zuma] has di­rect per­sonal and/or fi­nan­cial in­ter­est in the in­quiry’s out­come,” she adds.


Should Mkhwe­bane be com­pared to her highly re­garded pre­de­ces­sor? Pro­fes­sor Alan Hirsch, di­rec­tor of UCT’s Grad­u­ate

School of De­vel­op­ment Pol­icy and Prac­tice, thinks it’s fair that Mkhwe­bane is con­stantly com­pared to her pre­de­ces­sor.

“Madon­sela set a new bench­mark as the pub­lic pro­tec­tor,” he says. “All fu­ture pub­lic pro­tec­tors in South Africa will be com­pared to her.”

De Vos says Mkhwe­bane hasn’t met the min­i­mum re­quire­ments of what is ex­pected of her po­si­tion and is nowhere near the cal­i­bre of Madon­sela.

Her han­dling of the Re­serve Bank mat­ter and call­ing for a change in the Con­sti­tu­tion was noth­ing short of a dis­as­ter, he adds.

“If I want to be a lit­tle un­kind, I would say that if one of my stu­dents were to make such a claim in an exam, they would not pass.”


Dube says the crit­i­cism of Mkhwe­bane should be bal­anced against her of­fice’s lat­est an­nual re­port, tabled in par­lia­ment in Au­gust 2017 – 10 months af­ter she took of­fice.

“The of­fice man­aged to fi­nalise an im­pres­sive 10 787 of the 16 397 cases they took on dur­ing the year that ended March 2017,” she says.

As many as 17 in­ves­tiga­tive re­ports were is­sued – al­though five of those are cur­rently be­ing chal­lenged in courts.

“She has also worked to bring the work of her of­fice to re­mote as well as ru­ral ar­eas in or­der to cre­ate aware­ness of the of­fice at grass­roots level,” Dube says.

One of Mkhwe­bane’s re­ports that made head­lines was the in­ves­ti­ga­tion into al­le­ga­tions of mis­ap­pro­pri­a­tion of pub­lic funds, im­proper con­duct and mal­ad­min­is­tra­tion by the East­ern Cape Pro­vin­cial Gov­ern­ment and other or­gans of state in pre­par­ing for Nel­son Man­dela’s fu­neral.

She found that the prov­ince “im­prop­erly” di­verted funds amount­ing to R300 mil­lion meant for so­cial in­fra­struc­ture de­vel­op­ment, such as wa­ter and schools, and mis­used them for T-shirts and KFC.

Mkhwe­bane has been fi­nal­is­ing re­ports in­volv­ing or­di­nary cit­i­zens, what Madon­sela called “Gogo Dlamini” cases.

For in­stance, she in­ves­ti­gated al­le­ga­tions brought by God­frey Maseng re­gard­ing the death of his mother, Ziphora Maseng, who died in Mafikeng Pro­vin­cial Hospi­tal in Mahikeng in June 2003.

The com­plainant claimed the North West Health De­part­ment failed to give his mom proper med­i­cal at­ten­tion and she later died. The pub­lic pro­tec­tor or­dered the de­part­ment to pay the fam­ily R50 000.

De Vos ad­mits the pub­lic pro­tec­tor does deal with “small com­plaints by or­di­nary cit­i­zens who are try­ing to get of­fi­cials some­where to do their jobs”.

“Pub­lic pro­tec­tors al­ways try to do that and they do it well. The prob­lem is they’re over­worked and don’t get to all the cases.”

The fo­cus of the job should be on help­ing or­di­nary peo­ple, he adds. “If you can man­age to do that, that’s a good thing.”


Mkhwe­bane’s ap­point­ment had sup­port from the ANC and the EFF. “But I don’t think any­one knew she’d be as vul­ner­a­ble to er­ror as she has been,” Hirsch says.

How­ever, even Ramaphosa would find it dif­fi­cult to get rid of her be­cause she was ap­pointed by par­lia­ment. “But one would hope a new head of state could en­cour­age her to sur­round her­self with stronger ad­vis­ers.”

De Vos says there isn’t re­ally an ac­count­abil­ity mech­a­nism to hold any pub­lic pro­tec­tor re­spon­si­ble for their mis­takes, apart from her re­ports be­ing set aside by the courts.

“Or, if she’s guilty of mis­con­duct or in­com­pe­tence, par­lia­ment can re­move her,” he elab­o­rates. “But that would be an ex­treme case – you re­ally have to show the per­son is com­pletely un­able to do their job. Par­lia­ment would have to vote for the re­moval with a 60 % ma­jor­ity.”


Pos­si­bly, Hirsch says, but Mkhwe­bane “will need to act more care­fully and take bet­ter ad­vice”. De Vos is a firm be­liever that ac­tions speak louder than words.

“The way to en­sure peo­ple trust the of­fice of the pub­lic pro­tec­tor is for its leader to in­ves­ti­gate with­out favour or prej­u­dice,” he says – which is ex­actly what Thuli Madon­sela did.

Dube says Mkhwe­bane needs to reaf­firm her neu­tral­ity and work on the pub­lic im­age of her of­fice.

“She must pub­li­cise com­pleted cases and in­ves­ti­ga­tions as a way of en­sur­ing South Africans are made aware of her other work out­side the im­por­tant po­lit­i­cal in­ves­ti­ga­tions,” Dube says. SOURCES: TIMESLIVE; M&G; NEWS24; PUB­LIC PRO­TEC­TOR’S OF­FICE


Ad­vo­cate Bu­sisiwe Mkhwe­bane has had a tough time con­vinc­ing cit­i­zens that she’s able to fill the shoes of her pop­u­lar pre­de­ces­sor, ad­vo­cate Thuli Madon­sela.

Madon­sela, seen at the open­ing of par­lia­ment in 2016, is chair in so­cial jus­tice in the law fac­ulty of Stel­len­bosch Uni­ver­sity.

Mkhwe­bane met Pres­i­dent Ja­cob Zuma for the first time in De­cem­ber 2016, two months af­ter she was ap­pointed. Zuma pledged his and gov­ern­ment’s sup­port to help her of­fice ful­fil its man­date.

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