‘Mkhwebane’s one-woman show has to go’
Outgoing deputy says he was frozen out of public protector’s investigations
● Outgoing deputy public protector Kevin Malunga has called for the reinstatement of quality control mechanisms in the institution, a system Busisiwe Mkhwebane scrapped when she took office.
Malunga told the Sunday Times this week he was frozen out of Mkhwebane’s high-profile investigations and said his replacement in the post should be a tough, sharp lawyer who would stand his or her ground.
As things stand, Mkhwebane alone has the final say on investigation reports, several of which have been criticised by the courts.
During Thuli Madonsela’s tenure, reports would be made available for investigators to scrutinise.
Not only would the deputy public protector be expected to comment on reports, even investigators in the various provincial offices would share their views on the legality of findings and the structure of reports.
“It’s something that must be fixed the next time around,” Malunga said.
“I would certainly put in place a tight quality assurance mechanism, including bringing back the thinktank exercise we used to have where we used to put reports up for everyone to scrutinise, people from the provinces, for people to poke holes in them.”
Malunga said he “pleads ignorance” and “washes my hands” of the series of reports by Mkhwebane that drew the ire of many judges.
He said he was kept in the dark about the reports on the Bankorp/Absa saga, the Estina dairy farm, the South African Revenue Service “rogue unit” and the Bosasa donation to President Cyril Ramaphosa’s 2017 ANC election campaign.
“I plead ignorance because I was not consulted,” Malunga said. “I was not approached. If two people have breakfast somewhere without you, they cannot say ‘why didn’t you come for breakfast?’, because you were not informed that there was breakfast,” he said.
“I wash my hands of [the reports] because I was not party to drafting them. It doesn’t help things because I am supposed to know about them.”
In July the Constitutional Court issued a scathing judgment against Mkhwebane relating to her discredited report on the South African Reserve Bank’s lifeboat for Bankorp/Absa. Among other things, it accused her of falsehoods and obfuscation, and it upheld a punitive costs order against her made by a lower court.
Asked if he regarded it as his responsibility to advise the public protector about the questionable legal standing of her reports, Malunga said he only saw them after they had been released.
“One could not stop the train while it was moving.”
He said there was no personal animosity between himself and Mkhwebane.
Malunga said he hoped the series of critical court verdicts had been “a learning curve” for the public protector’s office and that processes would be changed to include rigorous vetting of reports to ensure they were watertight.
“When the [justice] committee appoints my successor, they must get a bright, tough lawyer who will advise the public protector.”
His replacement must not be “a coward”, said Malunga, whose seven-year term ends in December. He is not seeking a second term, as he would be entitled to do.
Mkhwebane’s spokesperson Oupa Segalwe said the Think Tank mechanism was done away with because of shortage of funds.
“That model required provincial heads to regularly travel and stay a night or two in Pretoria.”
Segalwe said reports still get quality-assured at multiple levels including branch level, at the COO’s office and Legal Services level.
He said Malunga is part of a forum that monitored updates with reports. “Malunga was also assigned to spearhead a project to finalise all cases that are two years and older in the system. He is also responsible to file inspection across the board, where he checks progress on all investigations per province/branch,” Segalwe said.
Last week, parliament’s justice and correctional services committee said it had received 28 applications for the position, among them from Robert McBride, the former head of the Independent Police Investigative Directorate. The deadline for nominations is October 16.
Malunga said his successor must not be a sweetheart of functionaries of the state, or “starstruck by politicians”.
“You cannot be their lackey or tool.”