Another court ruling raises the question of where Mkhwebane’s priorities lie

By its very nature, the office of the public protector will have its detractors and supporters. Its work will, from time to time, rub the powerful in society up the wrong way. While that is to be expected, it should not overshadow the core mandate of the office, and how effectively that task is carried out. This week’s rejection by the Western Cape High Court of Busisiwe Mkhwebane’s application for leave to appeal against a ruling that blocked her from continuing to work despite her suspension puts the matter into focus. It is one of many court cases she has lost since taking office, some with costs awarded against her.

The high court’s decision came at the same time it emerged that Mkhwebane’s office has spent about R147m on legal fees since she took office six years ago.

The figure was revealed during parliament’s section 194 impeachment inquiry by a senior manager for legal services in the public protector’s office. He indicated that the high expenditure on legal costs affected the office’s ability to effectively carry out its core mandate of protecting citizens against the wrongful actions of public office bearers and officials, as well as the quality of investigations and reports.

This, in turn, drove up legal costs as a result of an increasing number of actions to review the public protector’s reports.

The court’s ruling against Mkhwebane, together with the size of her legal bills, raise the question of where the priorities of the office lie. Does it spend its funding on protecting the public as enjoined by the constitution, or on defending the integrity of its reports and fighting Mkhwebane’s battles to hang on to her position?

It would, of course, be wrong to fault Mkhwebane for taking steps to defend her rights as a citizen and as an employee. Her role does not in itself disqualify her from doing so. Nor should she be criticised for defending her reports when necessary.

The question she faces is whether she has been prudent in using public funds to fight her court battles.

The frequency with which she has lost cases in the courts would suggest the opposite, especially considering the amount of money she spent on legal consultants.

Second, Mkhwebane has of late been in the news more in relation to her own issues, or because she is embroiled in public controversy. She has spent much time away from her office as a result of her suspension.

She is now appealing to the Constitutional Court against her suspension by President Cyril Ramaphosa and asking that she be allowed to return to work in the interim. Argument is due to be heard on November 24.

In the face of all this, Mkhwebane must ask herself if she is elevating the image of her office — a crucial institution in our democracy — in the eyes of the public, or doing the opposite.

The public protector’s office has in the past played an important role in defending the rights of citizens — as when, under Mkhwebane’s predecessor, it shone the light on state capture corruption, which resulted in the establishment of the state capture commission, headed by now chief justice Raymond Zondo. Mkhwebane must ponder whether her actions have resulted in protecting that legacy.

Fundamentally, the issue is whether, being almost permanently entangled in public controversy, Mkhwebane is, in fact, suited for her position of public protector; or whether her removal will be in the best interests of the office and the country.

This is a question that the parliamentary inquiry must answer, hopefully sooner rather than later.

She has of late been in the news more in relation to her own issues, or because she is embroiled in public controversy