Busi Mkhwebane and President Cyril Ramaphosa both say the office of the public protector must be respected.
Ramaphosa stuck to this script during Sunday’s broadcast when he announced he would seek a judicial review of the public protector’s findings against him in the Bosasa matter.
Mkhwebane has not shown the same respect for her office. If she did, she would step down after Monday’s unappealable findings against her by the Constitutional Court in the Reserve Bank/Bankorp case.
The court said Mkhwebane, “acted in bad faith; did not fully understand her constitutional duty to be impartial and perform her functions without fear, favour or prejudice; had failed to produce a full and complete record of the proceeding…; and had failed to fulfil her obligation to be frank and candid when dealing with the court”.
She also failed to meet “the standards expected of a public protector in light of her institutional competence”.
It is difficult to see how the public can retain confidence in their supposed protector. She does have supporters, including such upstanding citizens as Gayton McKenzie and Tony Yengeni. The EFF and the deregistered BLF are also in her corner, which must be reassuring.
If she won’t step down, how can she be dismissed? Section 194 of the constitution says the public protector can be removed “only on the grounds of misconduct, incapacity or incompetence”. Monday’s ConCourt ruling is not enough. A finding of misconduct, incapacity or incompetence must be made by a National Assembly committee. Then at least two thirds of members must adopt a resolution calling for her removal.
The DA, which opposed Mkhwebane’s appointment three years ago, would probably support such a move. The EFF (44 seats) would not. In the 400-seat Assembly 267 votes are required. If all 84 DA MPs voted for Mkhwebane’s removal, 183 more would still be required. For argument’s sake, add 10 from the FF+ and four each from the IFP and ACDP. That’s still 165 short.
The only way parliament can remove Mkhwebane is with the support of the majority of ANC MPs. Here ANC factionalism looms large.
Mkhwebane is seen as in the Zupta-supporting camp of party secretary-general Ace Magashule. If that faction is more than 65-strong among the 230 ANC MPs, Mkhwebane won’t be removed by parliament.
Some hopes are pinned on using the ConCourt judgment to have her struck off the advocates’ roll but that route too has pitfalls.
Simply, if she is serving factional purposes, her backers will keep her in office. Perhaps assisting with costs? Expect more Stalingrad tactics, following the example of Jacob Zuma.
Yet, no matter how bad Mkhwebane may be, it is wrong to assume Ramaphosa therefore has no case to answer. There’s a dangerous narrative afoot, to go easy on Ramaphosa because he is SA’s best hope. This is bizarre. The “new dawn” is supposed to be founded on clean governance.
Ramaphosa did mislead parliament, inadvertently or not. And his family’s dealings with Bosasa are still not fully explained. These are matters that a proper public protector should investigate.