Mkhwebane utterly lacks Madonsela’s common sense

attended the Small Business Initiative’s Cape Town outreach conference this week and the keynote speaker was Thuli Madonsela, who was impressive as always. The difference between her approach and that of her successor, Busisiwe Mkhwebane, is obvious, but hearing Madonsela speak made me think about the specifics of that difference.

Madonsela captured things with great accuracy. She quoted former president Thabo Mbeki, saying that in February South Africans felt they were back on the “pedestal of hope”.

“Now here we are in June, asking, ‘who moved my cheese?’,” Madonsela said.

She answered her own question with issues that have brought SA back to reality — the land question, inequality, unemployment, — but she added a new aspect — social fracture. She said she couldn’t remember during the apartheid era anyone saying white people were the problem. White supremacy was then recognised as the problem. But never white people per se.

She told the story of the king who gave his three potential successors seeds and told them to come back with the fruits. Two returned with both the fruit and the trees. The third came back with nothing and said his seeds had not grown. The third was made the new king, because in fact the seeds were dead. The test was not of ability but of integrity.

It’s a sweet story, somewhat cheesy but typical of Madonsela: full of heartfelt principle that constitutes a powerful undercurrent. But the outstanding feature was this: common sense.

Mkhwebane doesn’t make speeches to polite public gatherings, so there is no true comparison. But she does make judgments, and her recent judgment on Helen Zille’s colonialism tweets has been castigated by the DA, inevitably, but also by the sensible middle ground.

Constitutional lawyer Pierre de Vos, a determined critic of Zille’s comments, unwinds on Mkhwebane, unpicking the litany of legal errors contained in the finding. “By issuing a report in which she purports to deal with Zille’s tweets but does so in a manner that suggests she has little understanding of her own powers and lacks even a very basic knowledge of the Constitution … she has invited the public again to consider whether she is suitable to continue in her current position,” De Vos wrote in a Daily Maverick column.

The executive secretary of the Council for the Advancement of the South African Constitution (Casac), Lawson Naidoo, noted at the event that one in every five of Mkhwebane’s findings had been taken on judicial review, many by Casac itself. Casac had not taken a single Madonsela finding on review.

But aside from the many legal issues involved in the Zille comments, what the finding lacked at root was simple: common sense. The issue was not in the public protector’s mandate; it fits the mandate of the Human Rights Commission. The public protector is there to hold the government to account, not parlay issues of politics.

Mkhwebane clearly took on the issue because she felt she needed to store up her cachet with society and the ANC. The Zille quotes were, seemingly to her, a train on which to hop to achieve this end. As De Vos points out that by inappropriately jumping into the debate she has inadvertently strengthened Zille’s argument that the issue is one of political perspective, not founding principle.

THE ISSUE WAS NOT IN THE PUBLIC PROTECTOR’S MANDATE; IT FITS THE MANDATE OF THE HUMAN RIGHTS COMMISSION

The ANC now sits with a big problem. There is only one way to get rid of her, and that is by parliamentary vote. The justice and correctional services portfolio committee discussed Mkhwebane’s fitness to hold office as the public protector this week, but has so far maintained support for her.

Naidoo said Parliament had to establish one of three grounds for her removal: misconduct, incapacity or incompetence. As far as he is concerned, she qualifies on any of the three grounds.

“Very few would argue that in the 20 months she has been in office Mkhwebane has not brought it into disrepute,” he said.

The ANC is on the horns of a dilemma. It needs the votes of either the EFF or the DA to remove Mkhwebane, and getting either will be an implicit step-down. No one in the ANC will want to mention this, but a dysfunctional public protector is not a terrible thing for the party in power.

On the other hand, Mkhwebane is so irrational she could end up seriously embarrassing anyone. For the leadership of the ANC, leaving Mkhwebane in place will seriously hamper its clean-up campaign and that could have an effect at the polls.

This is a true test for the new government; acting will hurt, but failing to act will ultimately hurt more. Your call, Mr President.