Public protector Busisiwe Mkhwebane. Picture: SUPPLIED
Public protector Busisiwe Mkhwebane. Picture: SUPPLIED

How many times can an individual be told that they are incompetent before their confidence starts waning?

Well for public protector Busisiwe Mkhwebane there is no limit. Either she is really thick skinned or she just does not care as her competence is brought into question time and again by the only people who have the power to review and set aside her findings: SA’s judges. It does not matter which one it is; she should have resigned a long time ago.

But given what we know about Mkhwebane and the way she has responded to previous scathing judgments, it is highly unlikely. If she had any self-awareness and pride in her job she would have resigned after the scathing Constitutional Court judgment in which she was found to have lied under oath. This is the stuff of nightmares for lawyers.

On Tuesday, Mkhwebane was handed another scathing judgment, this time in the matter involving President Cyril Ramaphosa and the Bosasa donation to his CR17 campaign for the presidency of the ANC. The full bench of the court trashed Mkhwebane’s findings against the president, declaring them unlawful.

It found that she had ignored evidence at her disposal over the campaign donations and in so doing she had breached “her duty to approach every investigation in an open-minded fashion”.

Limits on power 

Given her litigious nature, which is for the most part funded by taxpayers, it is likely that she will appeal the judgment. While the saga is highly politicised, the judgment has far-reaching consequences for what she sees as the powers of her office, powers the high court swiftly curtailed this week.

The court had to spell out that she could not just do as she pleases with her already wide powers derived from the constitution. The stark reality that was underscored by the judgment was that she could not investigate whatever she wanted and order whoever she chose to do what she wanted them to do. Even wide powers have limits.  

This was most clearly indicated by the dispute over whether she even had the jurisdiction to look into the CR17 donations and whether she could order the national director of public prosecutions (NDPP) to institute investigations and then demand of Shamila Batohi to get her approval for an implementation plan.

The answer to the above was a frank no. The public protector has jurisdiction over state affairs and public monies, while the CR17 campaign was decidedly private and was funded by private money. In terms of the NDPP, the court was clear that she had exceeded the limits of her powers in the remedial action and monitoring measures she directed at Batohi.

The court held that this order displayed a “complete lack of understanding on her part of the limits of her powers” and that she displayed a clear failure to grasp the meaning of prosecutorial independence.

While it is important that the court once again had to shine a light on her legal incompetence, it is unlikely that this will be the end of Mkhwebane. It merely adds to the dossier against her, as she fights for her professional survival as head of the institution.

The additional ammunition against her comes as parliament once again starts the process in terms of which she could face an inquiry into her fitness to hold office and eventually be removed.

But the question is: when will the mounting evidence against her be enough for MPs?

It’s a serious question that should be divorced from the messy politics that surrounds it. The issue is far less complex than whether she is being used as a political pawn. The question in the constitution is simple: are there grounds for removal on the basis of misconduct, incapacity or incompetence? And the answer to this question seems clear.

To quote finance minister Tito Mboweni: “In a democracy like ours, the PP [public protector] should fall on her sword. Game over!!”

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