Busisiwe Mkhwebane. Picture: REUTERS
Busisiwe Mkhwebane. Picture: REUTERS

Under-fire public protector Busisiwe Mkhwebane came out guns blazing during her appearance in parliament on Wednesday, describing recent attacks on her office as unconstitutional and some of the court challenges of her reports as “frivolous”.

Briefing parliament’s justice committee on her office’s annual performance plan and budget, Mkhwebane also revealed that she has asked the National Prosecuting Authority (NPA) to investigate public enterprises minister Pravin Gordhan over the setting up of the so-called SA Revenue Service (Sars) “rogue unit”.

Mkhwebane wasted little time in confronting concerns raised about her recent investigations and reports, and suggestions that she is incompetent.

“Some are under the impression that we just wake up on a morning and decide to pursue investigations. We do not target people,” Mkhwebane said.

The public protector is under intense scrutiny following recent court decisions to set aside some of her reports. The DA is also pushing to have parliament review her fitness to hold office, amid growing concerns that the crucial chapter 9 institution, which is meant to guard democracy and fight corruption, is fast losing credibility under Mkhwebane’s watch.

In June, ANC chair Gwede Mantashe accused Mkhwebane of playing politics and fighting petty ANC factional battles. He was reacting to Mkhwebane’s investigation into President Cyril Ramaphosa’s ANC presidential campaign donation from corruption-accused facilities management firm Bosasa.

Mantashe said then: “She has occupied the political space from time to time. There were seven presidential candidates in the ANC and she is not interested in any of them except one — that is political.”

Last week, Mkhwebane released reports finding that Gordhan had violated the constitution by establishing the Sars “rogue unit”. She also found that he had misled the National Assembly about his meeting the Gupta family.

Mkhwebane directed Ramaphosa to take disciplinary action against Gordhan within 30 days. Gordhan’s lawyers are due to provide details of plans to take the public protector’s report on judicial review.

The report was Mkhwebane’s second finding against Gordhan. In May she released a controversial report directing Ramaphosa to “take appropriate disciplinary action” against Gordhan, finding that his approval of former Sars commissioner Ivan Pillay’s early retirement package amounted to “improper conduct” and violated the constitution. Gordhan is also challenging that report.

In her presentation to the justice committee, Mkhwebane said that there were already 16 review applications into reports of the public protector when she took office. She said there are now a total of 30 reports which have been taken on review to date. Some are “frivolous”.

“If we take decisions they do not like, we are incompetent, biased, involved in political factionalism, and not fit for office. It is almost as though everyone is a public protector in their own right. We cannot please everyone. We can only [do] our best,” said Mkhwebane.

She said the reality is that in the kind of work her office does, decisions will not go down well with some of the affected parties and such parties have recourse in that they can approach a court of law to have decisions reviewed. Many have done that.

“But we find that this process is severely misunderstood. There are certain quarters in society who seem to believe that to have a report taken on review is an indication of ineptitude on the part of the author of the report concerned.”

ANC MP Richard Dyantyi described Mkhwebane’s presentation as one of an “angry and aggrieved individual”.

“We now have to budget for incompetence,” Dyantyi said in reference to the number of reports taken on review and Mkhwebane’s request for more funding.

Her office’s budget for the 2019/2020 financial year is about R322m, and R185m is budgeted for investigations. The public protector is asking parliament for additional funding of R116m.

EFF MP Mbuyiseni Ndlozi came to Mkhwebane’s defence, saying it’s “wrong and dishonourable for people to come to parliament and subject the public protector’s reports to a review”.

“She is not obliged to respond to the internal detail of the reports [here in Parliament].  That is wrong … reviews are for the courts. If you want to debate the competence of public protector, this is not the platform. Today we are debating the tabled budget,” said Ndlozi.