President tells Mkhwebane to stay in her lane
• Public protector accused of trying to usurp powers of the president and parliament in her report on horse racing
Beleaguered public protector Busisiwe Mkhwebane is facing fresh accusations that she tried to usurp President Cyril Ramaphosa’s powers and those of parliament by ordering the establishment of a new independent body to regulate the horse racing industry. Ramaphosa and presidency director-general Cassius Lubisi have now gone to court to overturn yet another of Mkhwebane’s findings on the commercialisation of the horse racing industry, which they argue repeats the disastrous mistakes of her invalidated SA Reserve Bank report.
Beleaguered public protector Busisiwe Mkhwebane is facing fresh accusations that she tried to usurp President Cyril Ramaphosa’s powers and those of parliament by ordering the establishment of a new independent body to regulate the horse racing industry.
Ramaphosa and presidency director-general Cassius Lubisi have now gone to court to overturn yet another of Mkhwebane’s findings on the commercialisation of the horse racing industry, which they argue repeats the disastrous mistakes of her invalidated Reserve Bank report.
THE REMEDIAL ACTION THAT SHE HAS DIRECTED IS IRRATIONAL, UNCONSTITUTIONAL, NOT COMPETENT AND IS UNLAWFUL
“It is my contention that the public protector has failed to exercise her powers in a manner that is constitutionally sound and that the remedial action that she has directed is irrational, unconstitutional, not competent and is unlawful,” Lubisi argued in court papers.
“It accordingly stands to be reviewed and set aside on the grounds of illegality or irrationality.”
Mkhwebane has previously been chastised for ordering parliament to amend the constitution to change the mandate of the Reserve Bank so that it is no longer focused on protecting the value of the rand.
She admitted that this directive was unlawful, and was subsequently ordered to personally pay part of the legal costs attached to the saga by the Constitutional Court. The top court found she had acted dishonestly and in bad faith in her Reserve Bank investigation.
In Mkhwebane’s horse racing report, Ramaphosa and Lubisi argued that she has again sought to exercise power she does not have by ordering the president and parliament to create a new horse racing regulatory body.
In a sworn statement supported by Ramaphosa, Lubisi further argues that the remedial action ordered by Mkhwebane “has no rational connection” to the findings she made in her horse racing report.
MALADMINISTRATION
After investigating multiple complaints about the commercialisation of the horse racing industry, Mkhwebane found that only one was substantiated, specifically that “public funds allocated from the Horse Racing Development Fund during the corporatisation process for the benefit of grooms and for the upgrading of stabling facilities” had not been used for their intended purpose.
This amounted to maladministration, she said.
She then ordered Ramaphosa to constitute a ministerial committee — under the stewardship of the minister of trade & industry —“that will be tasked with a duty to establish a statutory and independent body that will serve as a regulator for thoroughbred horse racing in the republic”.
Lubisi contends that this remedial action did not remedy the issue the public protector found to be “substantiated”. He further argued that Mkhwebane had “usurped the executive power of the president to assign functions to members of the executive” and “unlawfully arrogated to herself the executive authority to select how best to discharge the functions of the cabinet”.
This was not “an appropriate exercise” of the public protector’s powers, he said, arguing that Mkhwebane had “made a policy choice for the executive”.
Lubisi also slammed Mkhwebane for predetermining the vote in parliament required to pass the legislation that would establish a new horse racing regulatory body.
MKHWEBANE CONTENDS THAT NONE OF THE SCATHING RULINGS AGAINST HER CAN BE USED AS A BASIS FOR AN INQUIRY
In apparent reference to the Reserve Bank legal saga, Lubisi added that Mkhwebane had “previously been criticised” for making such an order in the past. “The enactment of national legislation is a matter within the exclusive domain of the parliament,” he said, adding that Mkhwebane’s remedial action violated the doctrine of separation of powers.
Mkhwebane is fighting to halt the parliamentary processes that could lead to her facing an inquiry into her fitness to hold office. She insists that this process — and the rules formulated to govern it — is unlawful and unconstitutional. She further contends that none of the scathing rulings issued against her can be used as a basis for such an inquiry, as this would violate the doctrine of separation of powers.