OPINION | Bouwer van Niekerk: Why we do not have a functioning Public Protector

Public Protector Busisiwe Mkhwebane.

Public Protector Busisiwe Mkhwebane. Jan Gerber, News24

Without a functioning Public Protector, the people have been left without the remedial actions that they could have relied upon had the Public Protector focused on serving the public, as opposed to the person, writes Bouwer van Niekerk.

To say that the current Public Protector has had a tumultuous time during her reign would be a kind statement. To say that the outcomes of her reports have been met with resistance would be an understatement. To say that she has fulfilled her constitutional mandate would, however, be untruthful, and belied by all empirical evidence.

Much has been said about the shortcomings of advocate Busisiwe Mkhwebane. Her methodology in conducting her investigations has been severely criticised by every court that has reviewed it. Her truthfulness has been found lacking, her Stalingrad approach to having her fitness determined by Parliament has been met with near-universal disdain, and her rants on being victimised by anyone who dares to criticise her are unbecoming of what should be expected of someone occupying her office.

After unsuccessfully approaching every recognised court in the country (some even on multiple occasions on the same issues) to attempt to vindicate herself and her doings in order to justify her self-evident shortcomings, she has gone so far as to lay criminal charges against literally every sphere of the State tasked with the separation of powers in our constitutional democracy – the legislature, the executive and the judiciary – claiming the most fanciful and absurd conspiracy theory in recent memory. And her motive for doing this? It is plainly just a stratagem to ensure that due process prescribed by the very Constitution that made her appointment possible and governs her functions is not followed.

Why? Why would a constitutionally appointed servant of the people not subject herself to due process prescribed by the same Chapter 9 of the Constitution that appointed her? The answer to this appears to be obvious: there is nothing that advocate Mkhwebane will not do to save her own skin.

But why should we care? Should we not just pop some popcorn, sit back and enjoy the show of a train wreck happening before our eyes? At first glance, such an approach is appealing (excuse the pun). To witness someone make such a fool of herself on an almost daily basis in the public eye does serve some comic relief, and could be outright entertaining, were it not made by a person who holds such an important office. Let us pause and consider this for a moment.

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The Public Protector has very important, and very defined, functions. She is tasked to investigate any conduct in State affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice. In doing so, the Public Protector must report on that conduct and take appropriate remedial action. If the office of the Public Protector is occupied by a competent person (as was the case with our previous Public Protector), then he or she will spend most of her or his time fulfilling these constitutional duties, and spend little time being involved in litigation.

Numerous court battles 

And yet we have a Public Protector that has spent the greater part of her tenure having to defend herself in numerous court battles, losing one after the other. Now let us be fair, no one can be expected to be right all the time. The Public Protector is human, and it can be expected that bona fide mistakes may be made. But the sheer number of times that advocate Mkhwebane has been found wanting by all of our courts is disconcerting. One needs to look no further for evidence of this than in the Constitutional Court’s judgment in Public Protector v South African Reserve Bank [2019] ZACC 29, where the highest court in the land had the following to say:

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. The conduct includes the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report.

This finding alone by the Constitutional Court (which court’s findings cannot, contrary to advocate Mkhwebane’s bizarre belief, be overturned, appealed or rescinded when she actively participated in the proceedings) leads to the inescapable conclusion that she is unfit to hold office and should be removed. Parliament cannot disagree with this finding, as we are governed by a constitutional democracy – the finding by the Constitutional Court is cast in proverbial stone. Her incompetence has been determined, and her inevitable removal is a fait accompli, but for going through process dictated by section 194 of the Constitution – one that she has spent most of her time in office over the last couple of years trying to avoid.

Absent from office 

Much has been said about her actions in doing so, and no doubt much will be said about this still. I do not profess to have unique or profound insights on this. I will thus steer clear of crystal ball gazing in predicting how it will all pan out, as the countless court challenges that will necessarily follow regardless of what transpires in the National Assembly will depress not only myself, but all good citizens who are tired of this sad circus.

ALSO READ | Karyn Maughan: Mkhwebane’s baseless Stalingrad litigation shows why she must be suspended

However, it is noteworthy that advocate Mkhwebane’s battle to keep herself in office has essentially caused her to be absent from her office, in that she is not fulfilling the functions required by her office. It is simply not possible for her to be in a constant fight for survival and simultaneously fulfil her constitutional mandate. To suggest otherwise will be intellectually and factually dishonest. One would have expected that this would have dawned on her some time ago, and that she would have stepped down or at the very least negotiated some form of special leave to allow someone else (even if just on a temporary basis) to fulfil the very important role of the Public Protector to allow her to focus on her legal woes. Alas, this has not happened.

And who is prejudiced by this inaction? The citizens of South Africa.

The stubborn approach adopted by advocate Mkhwebane by insisting on nominally staying on as Public Protector, while in truth doing everything she can to ensure her personal survival has left a void that may in all likelihood take years to fill. This unconscionable approach has left a Chapter 9 institution all but rudderless. The result of this is as simple as it is painful – it is the people of South Africa who suffer. Because without a functioning Public Protector, the people have been left without the remedial actions that they could have relied upon had the Public Protector focused on serving the public, as opposed to the person.

– Bouwer van Niekerk is a Johannesburg-based attorney. 

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