Public protector’s position is now untenable
THE press has reported that the majority of parties in the National Assembly (NA) have supported new rules that specifically allow and facilitate the removal from office of a public protector (Daily News, December4 “Parties back axing rules” by Siyabonga Mkhwanazi).
Although in the tabling of a report in the NA, the ANC deputy whip, Doris Dlakude, intimated that the rules concerned were so drafted in order to remove any head of a chapter nine institution, which are state institutions supporting democracy, they have obviously been made with the present public protector, Busisiwe Mkhwebane, in mind.
Virtually since her inception of office, Mkhwebane’s conduct has been mired in controversy and disagreement with prominent persons in political and other arenas of public life.
Most of the litigation Mkhwebane has embarked on has been fruitless and she has lost most of her cases. The one involving the Reserve Bank was a faux pas of the first order, in which she grossly exceeded her mandate. This case alone indicates that she appears to be abysmally ignorant of the relevant law and her role as public protector.
The fact of the matter is that Mkhwebane has been involved in a notable number of controversies and there have been several significant judgments given against her during her tenure as the public protector.
Most notably in this regard as reported in the media are those relating firstly to President Ramaphosa’s alleged involvement in the improper acceptance of a Bosasa donation of R500 000, which Ramaphosa said he would take on review.
Secondly, the Absa Bank report, designated the Bankorp-CIEX, in which the court concerned on review of this matter found that she had acted in bad faith in her investigation.
Thirdly, the notorious Vrede Dairy Project Report, which was declared unconstitutional.
Fourthly, the Pravin Gordhan report in which the Gauteng High Court ruled that her recommendation against Gordhan should be suspended pending a judicial review of her report on the SARS “rogue” unit. The judgment stated that a number of her assertions were “vague, contradictory and/or nonsensical”.
The most notorious of the above reports related to the SA Reserve Bank, in which she without consultation with the relevant officials and role-players recommended and drafted changes to the Constitution to nationalise and thereby remove the independence of the Reserve Bank and its mandate to keep inflation under control. She then went on to instruct Parliament summarily to make such changes to the Constitution, an action for which her office gave her no mandate.
It is because of the above detrimental reports and the damage done by them to her professional competency and integrity that her position has become untenable.
Subsequently, if necessary and justified, she could and indeed should be removed from office, and replaced by a more competent and legally knowledgeable person, fit for this very seminal office, such as previous incumbent Thuli Madonsela eminently was – as demonstrated by her record in the position.