Public protector Busisiwe Mkhwebane. Picture: SUNDAY TIMES/THAPELO MOREBUDI
Public protector Busisiwe Mkhwebane. Picture: SUNDAY TIMES/THAPELO MOREBUDI

The failure of government departments to deal with the administrative lapses highlighted in her reports have created the impression that her office is toothless, public protector Busisiwe Mkhwebane told parliament on Friday.

This  situation is worsened by the financial constraints besetting her office, which means she cannot enforce her recommendations through the courts.

Mkhwebane is facing strong demands, both legally and politically, to leave office. Parliament’s justice and correctional services committee is currently processing the rules for the removal of the heads of institutions set up by chapter nine of the constitution.

The legal challenges relate to several individuals and bodies contesting the findings of her reports, several of which have been condemned by the courts. The courts have pronounced on her suitability to hold office, her impartiality, competence and adherence to the constitutional requirements of her office.

Of the approximately 150 reports Mkhwebane has issued, 63 have been taken on review, she said, adding that she has a list of nearly 40 “organs of state” that have either ignored her reports in their entirety or implemented only part of the remedial action. 

“This leaves a lot of the complainants in whose favour we have made findings and taken appropriate remedial action in limbo. As far as the affected parties are concerned this renders this office somewhat toothless,” Mkhwebane said to the committee in a briefing on the 2018/2019 annual report of her office.

“I wish to draw parliament’s attention to the fact that some organs of state still look the other way when my office points them to their administrative lapses. This is in spite of the instructive Constitutional Court decision that clarified once and for all that my remedial action is binding unless set aside by a court of law.’’

She said she has been the subject of “blistering” attacks from senior members of government. “Unsubstantiated allegations that I am beholden to a faction of the governing party have largely underpinned these attacks.”

Budgetary constraints

CFO in the public protectors’s office Yalekile Lusibane said the office continues to grapple with budgetary constraints, meaning it is not able to defend all matters taken on review. The office has appealed to the Treasury for R110.9m more over the next three years to 2022/2023. 

Lusibane noted that during the 2017/2018 and 2018/2019 financial years, 33 positions became vacant due to resignations.

Opposition MPs are concerned about the steady decline in the number of cases handled by the office of the public protector, suggesting that this could be due to an erosion of public confidence in Mkhwebane, who has been slammed by several courts for the quality of her reports.

African Christian Democratic Party (ACDP) MP Steve Swart pointed out that there has been a steady decline, year-by-year, in the number of cases finalised since 2012/2013 when 22,400 cases were finalised, compared with the 9,912 finalised in 2018/2019. A total of 4,390 cases were carried over from 2017/2018, and 4,006 carried over to 2019/2020. A total of 8,717 new cases were received in 2018.

A further decline is projected for 2020.

Mkhwebane denied that there is a lack of public confidence in her office.Despite the concerns of MPs, she believes the past three years to the end March 2019 of her term as public protector have been “successful” and that she has dealt with nearly 50,000 matters, finalising about 70% of them. Between October 15 2016 and March 31 2019 she produced 91 formal investigation reports.