Busisiwe Mkhwebane. Picture: SUNDAY TIMES
Busisiwe Mkhwebane. Picture: SUNDAY TIMES

It has been another bruising week for beleaguered public protector Busisiwe Mkhwebane, whose competence and suitability for her job was questionable even before the latest setback.

Very few were surprised by the Constitutional Court upholding an earlier  ruling by the high court that she had acted in bad faith in her investigation into the SA Reserve Bank’s apartheid-era Bankorp bailout, and that she must pay part of the legal costs out of her own pocket.

This was the third scathing court judgment against her and has given more ammunition to those who are calling for her to be removed. One only has to listen to the radio every morning to see how much damage has been done to an office that should be a key to holding public officials accountable.

In a healthy democracy one would have expected someone in her position, who had been found by the country's highest court to have been deliberately dishonest, would have done the honourable thing and resigned. But we are not there yet and in our highly polarised public discourse, she still has supporters.

While Parliament’s portfolio committee on justice and correctional services has been tasked with looking into her fitness to hold office, the Legal Practice Council (LPC), which regulates the affairs of legal practitioners, will on Friday be considering a request to bring an application to have her struck from the roll of advocates.

Accountability Now wrote to the LPC following Monday’s scathing judgment, saying, and rightly so, that

it is “ intolerable that an officer of the court should be found to be lying under oath ”.

Having someone struck off the roll of advocates is a lengthy process, and can only be done after being ordered by a court.

The high court in Pretoria also found when it reviewed and set aside her report into the Bankorp matter that Mkhwebane did not understand her job and acted in bad faith.

The same court then found that she either blatantly disregarded her constitutional duties or merely had a “concerning lack of understanding” of them during her investigation into the Gupta-linked Vrede dairy farm matter.

The court went further to declare that in investigating and reporting on the matter, Mkhwebane had failed in her duties under the Public Protector Act and the constitution. And then the Constitutional Court this week effectively sealed her fate when it upheld the high court judgment on the Bankorp saga. 

Mkhwebane also faces three other reviews of her reports. Two by public enterprise minister Pravin Gordhan relating to the SA Revenue Service’s so-called rogue unit saga and the early pension payout to former commissioner Ivan Pillay, and one by President Cyril Ramaphosa relating to the Bosasa donation he received for his ANC presidency campaign.

Any more adverse findings by the courts would merely compound the reality which faces her: there is no way to get around the Constitutional Court judgment.

Parliament has to do its job as it is the body that is supposed to hold her to account. But for that to happen, the ANC would have to come to the table.

Given the deep factional divides in the party, this may prove more of a challenge. And while parliament dithers and the ANC pulls itself apart, Mkhwebane will stay in office, whether she is fit to hold that position or not.

And it is clear that she will not go down without a fight. 

She, after all, at the release of the report on the so-called rogue unit, quoted from the bible:  ‘And so I will go to the King, which is against the law; and if I perish, I perish!’ She clearly doesn’t see herself as accountable to worldly forces, including the constitution.