Prepare for a new suppurating mess

THE seven-year running sore that was Busisiwe Mkhwebane’s tenure as the public protector has come to an end.

The relief may be short-lived. With the likely appointment of her deputy, Kholeka Gcaleka, to that office, a new suppurating mess is about to be created.

The same ANC-dominated Parliament that last year kiboshed an impeachment investigation into President Cyril Ramaphosa’s Phala Phala scandal, on Monday voted for impeachment by 318-43. By lunchtime on Tuesday, the chronically sluggardly Ramaphosa, acting with uncustomary vigour, had sent to her the official notification that she was fired.

It was the culmination of a process – started by the DA against substantial resistance from the ANC and the EFF – that took a foot-dragging two-and-ahalf years and cost about R160 million. It seems that despite being suspended early last year and now being fired for misconduct and incompetence, Mkhwebane was initially in line to receive a R10m end-of-service gratuity, which is equivalent to about four times her annual salary.

Her legal team, headed by the noxious Dali Mpofu, deployed the same Stalingrad-style defence manoeuvres that have worked so well on behalf of former president Jacob Zuma. They were able to bill the State a cool R34m, which Mpofu described as “peanuts” for a man of his brilliance.

Mkhwebane has already announced that she will challenge the impeachment in the courts.

She will be joined in this by the EFF, cheered on by an entire shoal of parliamentary minnows: the United Democratic Movement, the PAC and the African Transformation Movement. It’s not clear how these new fronts in lawfare will be paid for. Both she and the EFF have terrible legal performance statistics.

The EFF has had the humiliation of consistently losing in both costs and damages against the likes of AfriForum. Mkhwebane has not only challenged and lost, all the way to the apex court, nine high court decisions setting aside her public protector findings, in some, she had punitive personal cost orders made against her.

At issue, then, is not whether she should have been impeached, but rather how she survived to within months of the end of her seven-year term. And why was she chosen in the first place, after initially not making the shortlist? The answer to the first question is contained in the second. Mkhwebane was chosen as public protector because that institution – except for Thuli Madonsela, who fearlessly took on Zuma – has for its entire existence been headed by people chosen not for their legal credentials, nor for their commitment to nurturing our young and vulnerable democracy, but rather for their degree of alignment to the ANC.

Mkhwebane’s troubles did not come from being stupid and incompetent, but from being stupid and incompetent on behalf of the wrong camp. When Zuma got the boot, to be replaced by Ramaphosa, she made the mistake of throwing in her lot with the former president and the Radical Economic Transformation faction.

Even then, the ANC, determined not to risk the factionalism within the party widening to a split, continued to back her against DA calls for her dismissal. The beginning of the end was when she unwisely targeted Public Enterprises Minister Pravin Gordhan over a mythical Sars “rogue unit”, and Ramaphosa over campaign donations, both reports which were set aside by the courts.

The final straw came when she again took on Ramaphosa, this time over the Phala Phala forex scandal. But she had misjudged her moment. The now more confident president, having routed the RET faction just months earlier in the leadership election of December 2021, suspended her within a day of her move.

Mkhwebane’s supporters argue that her suspension and impeachment were politically motivated. They are absolutely correct.

Like most of the top appointments made by the ANC to supposedly independent chapter nine institutions – like the Human Rights Council (where Mkhwebane once worked) and the Public Protector’s Office – the cadres are expected to toe the line. With a few honourable exceptions, they are political stooges and should they ever seriously threaten the dominant ANC faction, they can expect to be shown the exit.

While Mkhwebane was dumb or unlucky and backed the wrong horse, her likely successor, Deputy Public Protector Kholeka Gcaleka, is an altogether smarter cookie. Not only is she at least marginally better at the law, but she knows which side her bread is buttered.

Her recent report letting Ramaphosa off the Phala Phala hook that Mkhwebane was trying to hoist him on to, was clearly based on political convenience. However, she pirouetted around the evidentiary potholes in a way that must fill her leaden-booted predecessor with jealous rage. It seems that Gcaleka has a great career ahead of her, should the opposition parties fail in their attempts to have the selection process started anew.

Of course, not so good for the democracy she’s supposed to defend. But since that’s fraying so fast under a multitude of assaults, her partisanship may not matter.