Lack of understanding is behind calls for the removal of the public protector

Writing in the March 17 edition of the Sunday Times, Barney Mthombothi made a startling proposal to President Cyril Ramaphosa. He implored the president to fire the public protector, Busisiwe Mkhwebane, or “make sure parliament takes the necessary steps to remove her”.

I have taken the liberty of assisting Mr Mthombothi to understand that SA is not a dictatorship and no president has the power to kick a public protector out of office or cajole the legislature to do so purely because some people hate it when certain public office-bearers are held to account — or for any other reason.

The public protector is appointed for a nonrenewable seven-year term by the president on the recommendation of the National Assembly after the assembly approves a resolution with a supporting vote of at least 60% of its members.

This is preceded by a transparent screening process spearheaded by an ad hoc committee proportionally composed of members of all parties represented in the assembly.

Candidates, who are nominated by the public, must be South African citizens, be fit and proper persons to hold the office and comply with other requirements set out by the Public Protector Act.

Advocate Mkhwebane went through this rigorous process in the glare of the public and went on to beat 58 other hopefuls to the job. She was supported by all but one political party in the committee, the DA, which accused her of being a spy without a shred of evidence to back up its wild claims. She has since made good on her undertaking to sue and is waiting for a court date.

Let’s now address Mthombothi’s gripe with her continued stay in office. Section 194 of the constitution provides that a public protector may only be removed from office on the grounds of incapacity, misconduct or incompetence; a finding to that effect by a committee of the National Assembly; and the adoption by the assembly of a resolution supported by at least two-thirds of its members.

These measures, which are strikingly similar to those applicable to judges, were put in place to guarantee security of tenure for public protectors (and judges), given the nature of their work, including that of placing the conduct of very powerful people under scrutiny and making embarrassing findings against such persons.

They are also meant to shield the public protector from being chucked out of office on the whim of those who, like Mthombothi, wish to see her back merely because she dares to investigate the alleged conduct of certain individuals. Above all, such measures are meant to create an environment where the public protector has the courage to exercise her powers and perform her functions impartially, without fear, favour or prejudice even in the face of unwarranted heckling and name-calling.

Mthombothi has joined the choir of those who berate the public protector for acceding to an anonymous complainant’s request to investigate the minister of public enterprises, Pravin Gordhan, for alleged impropriety concerning the retirement, pension payout and re-employment of Mr Ivan Pillay at the South African Revenue Service. Their reason is that the National Prosecuting Authority (NPA) decided to drop a criminal case into the same matter two or so years ago.

The public protector investigates maladministration or administrative lapses on the part of organs of state. Accordingly, the abandonment of a criminal case by prosecutors does not kill off a public protector investigation into the administration side of things.

Here is a typical example. Late last year, the NPA dropped the Estina dairy case. That decision has not affected advocate Mkhwebane’s investigation into the role of politicians in that matter. In fact, in a month or so, she will be lining up interviews with implicated political figures and beneficiaries, with a view to wrapping up that matter this year.

The public protector does not take up or decline requests for investigation on the basis of the character or public image of those whose conduct is alleged or suspected to be improper. At intake, each complaint is scrutinised to establish if it falls within the remit of the public protector and whether there is merit to the claims.

On investigating, the public protector takes her cue from the Supreme Court of Appeal judgment in the Mail & Guardian vs public protector case, also known as the “Oilgate” matter, in which the court advised that an investigator must approach any case with an open and inquiring mind.

Opinion makers and journalists such as Mthombothi will do well to approach columns or news stories with open and inquiring minds that do not assume the subject’s innocence or otherwise until the merits of the case have been fully examined.