ANC INTERNAL POLITICS
How double standard underpins handling of Moyane and Mkhwebane cases
In the same week as Cabinet went for the jugular of suspended South African Revenue Service boss Tom Moyane, the justice portfolio committee treated errant Public Protector Busisiwe Mkhwebane with kid gloves.
She was given a "fair" opportunity to respond to the justified complaint by the DA that she is incompetent.
No date has been specified for her to respond, leaving the DA to complain, in the words of its shadow justice minister: "What is unfortunate ... is that the chairperson and the ANC refused to commit to firm deadlines for advocate Mkhwebane’s submissions.
"Instead, South Africans have now been left with a flimsy commitment that she will be afforded a ‘reasonable time’ by which she will be expected to respond to the submissions against her.
"This is yet another delaying tactic ostensibly to protect the patently compromised public protector from being held to account. The DA will now ensure Mkhwebane submits her responses to the committee as soon as possible. The DA will continue to fight to protect the integrity of this essential institution of our democracy."
While it is difficult to cavil at the fair chance to reply to the complaint, the open-endedness of the way of dealing with a known "ducker and diver" is problematic.
While Moyane’s comeuppance will be widely welcomed among patriotic citizens, the continued royal game status of Mkhwebane is cause for some alarm in their ranks.
The take-home message from these two developments is that the protection of Luthuli House is the underlying difference between the kind of treatment meted out to these two senior public servants: Moyane is out of favour with the president and is scathingly, pertinaciously and deservedly criticised in the affidavit filed by Pravin Gordhan in the disciplinary pending proceedings.
Mkhwebane, on the other hand, is still, somewhat inexplicably, in favour (she was after all Jacob Zuma’s first choice for the position she so tenuously holds) and is given an open-ended period within which to reply to the DA’s allegations of incompetence.
Moyane, like the cat on the hot tin roof, will have to resort to technical point taking as he has no wiggle room left after the filing of Gordhan’s 69-page affidavit. He will be well advised to reopen the settlement negotiations with the government.
Mkhwebane, like the Cheshire cat, will watch with amusement as the can gets kicked further and further down the road in the pre-election posturing period of the political parties.
While Moyane’s comeuppance will be widely welcomed among patriotic citizens, the continued royal game status of Mkhwebane is cause for some alarm in their ranks. It is surely indisputable that both have been disastrous appointments of the Zuma era, right up there with the appointments of Menzi Simelane and Shaun Abrahams as the first and last national directors of public prosecutions oh-so-carefully chosen by Zuma. So dysfunctional did the criminal justice administration become on Zuma’s watch that it was left to Thuli Madonsela, whose remit as public protector was meant to concentrate on maladministration, to be the spearhead of anticorruption efforts, starting with the dismissal of Bheki Cele as police chief and culminating in the State of Capture report, which has spawned the slow-to-start Zondo Commission of Inquiry into State Capture.
On Moyane’s watch the credibility and efficacy of SARS suffered tremendous damage and left the country the poorer for it. The fate of Mkhwebane need not only be determined on the basis of the incompetence complaint against her by the DA.
In January 2017 Accountability Now complained about her misconduct in her handling of the publication of the provisional report into its Ciex complaint. It would appear, prima facie, that Mkhwebane lied about the very existence of the report and that she shared it with Zuma before she let the complainant and the affected parties in on what she had in mind. Her disingenuousness in dealing with queries about what she had done, in particular her refusal to investigate herself, (she was actually asked to explain herself) led inexorably to the inference that she has no reasonable explanation for her dishonesty, craftiness, blame-shifting and insincerity.
When asked to investigate the matter in January 2017, the justice portfolio committee played possum. Accountability Now has renewed the complaint in the wake of the recent developments by asking the committee to require Mkhwebane to answer the pertinent questions to her raised here.
Incompetence is curable with training, counselling, mentoring and filtering through the advisory committee the public protector has available to her.
Dishonesty, however, is a fatal character flaw in any lawyer; it is self-evident that our public protector cannot be fit for office if her deceitfulness is shown.
• Hoffman, SC, is a director of Accountability Now.