How does Mkhwebane get it so wrong?

Evidence of Public Protector Busisiwe Mkhwebane’s ineptitude is piling up in scathing judgments against her, says a legal analyst.

But the latest effort by the Economic Freedom Fighters (EFF) to defend her honour in the courts may garner a temporary victory. The public protector also said last night that she would be appealing the latest ruling against her in a scathing criticism of the judge in question.

Yesterday, the EFF also announced it would seek leave to appeal the North Gauteng High Court in Pretoria’s granting of an interim interdict staying remedial action ordered by Mkhwebane against Public Enterprises Minister Pravin Gordhan.

Mkhwebane’s advocate, Thabani Masuku, had blasted Gordhan’s application, saying his use of language was disrespectful and undermining of the public protector’s office, over his labelling of her as incompetent.

Delivering her ruling yesterday, Judge Sulet Potterill questioned why Mkhwebane would even entertain the Gordhan matter, as it dated to a decade ago. The Public Protector Act specifically permits for investigations into matters less than two years old unless special circumstances exist.

She dismissed submissions by Mkhwebane’s counsel that suspending her remedial action would weaken the public protector’s office and described some of the findings and orders in Mkhwebane’s report as “vague, contradictory and nonsensical”.

Legal analyst Phephelaphi Dube said there was a general trend pointing towards Mkhwebane’s unfitness to hold office emanating from the slew of serious legal blows she had been dealt since taking office, and the decisions she took in those matters. But, she said, this did not necessarily bring the integrity of the office she presided over into question.

“In terms of the highly charged political cases where she is personally involved, they obviously raise questions about her personal capacity and, of course, her fitness for office,” she said.

Dube said although some points raised by Potterill on the interdict matter yesterday may not have much bearing on the merits of the pending review of Mkhwebane’s report, some may have brought Mkhwebane’s objectivity into question.

“The fact that the judge pointed out that, by the public protector’s own admission, it isn’t normal practice for her to oppose an interdict.

“The fact that she chose to oppose this creates the impression that somehow, when it comes to legal cases involving [Gordhan], she is biased.

“It does speak to the sense that she did not have the strongest legal standpoint to begin with. From a practical basis, she should not have opposed this interdict knowing her report was going on review.”

Commenting on the EFF’s intention to approach the Constitutional Court to appeal the interdict, legal expert Johan Lorenzen suggested the party’s lawyers had their work cut out for them.

“The Constitutional Court only gives leave to appeal in a fraction of the cases where it is sought, because a party must show there are reasonable prospects of success,” said Lorenzen. “It is even harder to get leave to appeal on an urgent basis against an interim order.”

– simnikiweh@citizen.co.za

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