Reflecting on Mkhwebane’s term in office

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This week is likely to see the departure of embattled and suspended Public Protector Busisiwe Mkhwebane and the ushering in her successor, Advocate Kholeka Gcaleka a few days later.

On Monday, 11 September 2023, Parliament will consider the Section 194 Report that recommends Mkhwebane’s official removal from office. Ten days later, on 21 September, the Ad Hoc Report, recommending the appointment of Gcaleka as the new Public Protector will be considered.

Mkhwebane effectively only served about two thirds of her seven-year term after being suspended by President Cyril Ramaphosa on 9 June 2022. For over a year she has gone to great lengths to have this decision reversed by the courts, to no avail.

Unlike her predecessors, Mkhwebane leaves somewhat of a sour taste in the wake of her departure. She had some big shoes to fill after being appointed to follow the respected former Public Protector, Thuli Madonsela. Previous Public Protectors included Laurence Mushwana who was at the helm of the office during the Thabo Mbeki era and Selby Baqwa, who was appointed by Nelson Mandela in 1995.

A number of notable controversies and related judicial judgments against the Public Protector occurred during Mkhwebane’s tenure and ultimately resulted in her being suspended.

In 2017, following consultation with former South African Reserve Bank director Stephen Goodson, Mkhwebane drafted changes to the Constitution to nationalize and remove the independence of the SARB and the bank’s mandate to keep inflation under control. She then ordered Parliament to make those changes in the Constitution. This resulted in a loss of confidence in South Africa’s governmental bonds, and a loss of millions of rands. In August 2017, the Reserve Bank won its lawsuit against Mkhwebane and vacated her order on the grounds that it as violated the separation of powers. Mkhwebane appealed.

During that same year, Mkhwebane issued a report, the Bankorp-CIEX report, on her investigation Absa Bank and others. The Pretoria High Court set aside her order for Absa Bank to refund R1.125-billion to government for the financial assistance bailout that its predecessor Bankorp Group had received from the apartheid government. The court found that the public protector did not conduct herself in a manner which would be expected from a person occupying that office. The court also found that Mkhwebane had lied under oath and had acted in bad faith in her investigation. The court assessed some costs of the case personally against Mkhwebane due to her conduct. The personal costs order was later upheld by the Constitutional Court in July 2019, amounting to an estimated R900 000. The court’s judgment increased public calls to have Mkhwebane removed from office.

In 2019, Mkhwebane’s report into the alleged improper acceptance of a half million rand donation to the successful ANC presidential election campaign of President Cyril Ramaphosa from BOSASA also raised eyebrows. The report, which concluded that Ramaphosa had deliberately misled parliament when questioned about the donation, was described by the President as containing “numerous factual inaccuracies of a material nature”. Ramaphosa sought a judicial review of the report and in March 2020, the High Court in Pretoria found that the report should be set aside. The court also said that her office had no jurisdiction to investigate the matter.

In May 2019, Mkhwebane’s report into the Vrede Dairy Project was declared unconstitutional and set aside, with the Gauteng High Court finding that the Public Protector had failed in her duties to investigate the project. Her office was ordered to pay the costs of the challenge, with some of the costs awarded against Mkhwebane personally.

Since then, it has been a slippery slide for Mkhwebane. In November 2020, National Assembly Speaker Thandi Modise appointed former Constitutional Court Judge Bess Nkabinde and senior advocates Dumisa Ntsebeza SC and Johan de Waal SC to an independent panel. They were to consider whether there was prima facie evidence to suggest that Mkhwebane should be removed from office.

The report was handed over to parliament in February 2021.The report found that there was substantial information that constituted prima facie evidence of incompetence. There was also evidence that Mkhwebane overreached and exceeded her bounds of power in terms of the Constitution and the Public Protector Act. She also repeatedly made errors, including the incorrect interpretation of the law.

On 15 March 2021, the National Assembly voted that a committee should be set up to query her fitness to hold office. She was the first head of a Chapter 9 institution to be subject to such a process. In March 2022, President Ramaphosa asked Mkhwebane to provide him with reasons as to why he should not suspend her in terms of Section 194 (3)(a) of the Constitution, which she failed to do. And on 9 June 2022, Ramaphosa announced that he had suspended the Public Protector.

Over the next year, she fought tooth and nail to get her job back, to no avail, and ran out of money to pay for her legal costs. In August, the Section 194 Committee also finalised its inquiry and adopted a final report, recommending that Mkhwebane be removed from office about a month before her official term expires.

Waiting in the wings to officially take over the role as Public Protector is the acting PP, Advocate Gcaleka. She has a wealth of experience, having served as special advisor to various ministries, with a specific focus on the areas of administration, legal, legislation and policy development, strategy, compliance and governance.

Last month, Gcaleka was named as the next Public Protector for a non-renewable term from mid-October 2023. But the decision was not unanimous as the DA, the EFF and the Freedom Front Plus did not back the governing ANC and IFP, which supported her appointment.

The Ad Hoc Report, recommending the appointment of Gcaleka, will be considered by Parliament on 21 September 2023. 60% or 240 out of 400 members need to endorse a candidate for their appointment to be accepted.