Pro­tec­tor’s wings clipped

The Star Early Edition - - OPINION & ANALYSIS -

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. And many will be say­ing she de­serves what­ever flak she gets.

There was a touch of ar­ro­gance in the way she pro­nounced on her probe in­volv­ing the SA Re­serve Bank and Absa. Her in­struc­tion to Par­lia­ment to amend the con­sti­tu­tion so that the SARB’s man­date could be changed was greeted with dis­be­lief, as was her rul­ing that a R1.125 bil­lion loan to Bankorp dur­ing the apartheid era should be re­cov­ered from Absa. Dis­be­lief quickly turned to anger. Sev­eral 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’s a dis­turb­ing trend in Par­lia­ment, sta­te­owned en­ter­prises and some Chap­ter Nine bod­ies to run to court or de­fend them­selves in court when com­mon sense sug­gests they stand lit­tle chance of win­ning. And so it proved with Mkhwe­bane. It’s hard to fathom what made her think she could in­struct Par­lia­ment to change the con­sti­tu­tion – then al­most as quickly change her mind.

In pa­pers de­liv­ered in court, she said: “I ac­cept that the pub­lic pro­tec­tor’s pow­ers 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 ba­sic 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 South Africans were highly scep­ti­cal. But we be­lieved she de­served a chance. She has now had that chance – and failed it.

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

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