Busisiwe Mkhwebane. Picture: SUNDAY TIMES/ESA ALEXANDER
Busisiwe Mkhwebane. Picture: SUNDAY TIMES/ESA ALEXANDER

Who is advising public protector Busisiwe Mkhwebane? 

That she doesn’t know what she’s doing is almost beyond dispute, with the number of unfavourable court judgments against her piling up. 

But surely she must be surrounded by a team well-versed in the law and the constitution, and questions need to be asked about what is going on at Public Protector House in Pretoria.

This week’s court judgment on her Vrede dairy farm report is just the latest reason to raise questions.

The high court in Pretoria reviewed and set aside the 2018 report. Judge Ronel Tolmay didn’t exactly mince her words, describing it as “unlawful, unconstitutional and invalid”. The court also found that Mkhwebane had failed in her duties and violated the Public Protector Act and the constitution.

Tolmay found there were a number of errors in law in the report and that Mkhwebane had either blatantly disregarded her constitutional duties or merely didn’t understand them.

Either those advising Mkhwebane are just as incompetent as she seems — which is highly unlikely — or the public protector thinks she knows best and is ignoring advice. 

In 2018, the same court set aside the remedial action contained in her Absa-Bankorp report. Judge Cynthia Pretorius at the time said Mkhwebane didn’t “fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice”.

In another inglorious first, a judge recently prevented the release of a report after Mkhwebane had investigated allegations that water affairs minister Gugile Nkwinti had abused his power when he was in charge of rural development & land reform.

These judgments are not just an indictment on Mkhwebane, but on the office as a whole.

So what is happening over there? Either those advising Mkhwebane are just as incompetent as she seems — which is highly unlikely — or the public protector thinks she knows best and is ignoring advice. 

Regardless of what it is, something needs to be done quickly.

This once revered institution is fast becoming a joke and losing public confidence. This is the complete opposite of what President Cyril Ramaphosa is trying to do — clean up key institutions decimated during Jacob Zuma’s time in office.

It’s ironic that during the Zuma era, the public protector’s office was a beacon of light.

The institution that found that then-president Zuma and his family had unduly benefited from security upgrades to his Nkandla homestead and uncovered much of the looting that took place in those days, eventually leading to a judicial commission of inquiry into state capture, is now becoming highly compromised. And this is happening during Ramaphosa’s so-called new dawn.

The latest judgment also strengthens the view that Mkhwebane is using her position to fight political factional battles.

In the Vrede farm matter, she spared former Free State premier Ace Magashule and former agriculture MEC Mosebenzi Zwane. There’s no mention of them at all. That’s despite both being in leadership positions in the province when money was siphoned off, finding its way to the Gupta family.

Mkhwebane is also embroiled in battles with cabinet ministers who are working to help clean up the state. She has laid criminal charges against state security minister Dipuo Letsatsi-Duba and is investigating two complaints against public enterprises minister Pravin Gordhan.

The public protector could argue that she is just doing her job, but with her track record, it is hard to look at all these matters and believe she has good intentions.

And then we have the high court telling us that Mkhwebane doesn’t know how to do her job.

As SA’s sixth parliament gets under way this week, it’s time for the country’s legislators to take a stand and save the reputation of this important institution. After the disgraceful way in which they shielded Zuma from accountability in the last parliament, this could be an opportunity for them to show they’ve turned the moral corner. 

The last administration failed to remove Mkhwebane from office after the DA tried to get the process going in the portfolio committee on justice.

If Ramaphosa’s ANC is serious about rebuilding the state and its institutions it must put its money where its mouth is.