LETTER: Mkhwebane should have been suspended years ago

Again and again Busisiwe Mkhwebane has embroiled her office in legal battles unrelated to her constitutional duties as public protector. The courts have repeatedly made damning findings, in respect not only of her competence but also of her motives and integrity. For instance, in July 2019 the Constitutional Court said she had put forward a “number of falsehoods” and that her “defiance of her constitutional obligations” was “egregious”.

These findings signalled Mkhwebane’s misconduct, incapacity or incompetence, which the constitution says can trigger action against her. Clearly, no later than 2019 parliament should have taken steps to have her removed from office, and the president should have suspended her in the interim. This failure has caused the country untold harm. Millions have been squandered and weeks of court time wasted in frivolous and vexatious litigation — and the vitally important office of the public protector has become an embarrassment.

There are echoes here of another disgraceful failure to safeguard public institutions, in this case the Judicial Service Commission’s (JSC) abject dereliction of its duty to protect the integrity of the judiciary, no less vital a public institution. It is now 14 years since Western Cape judge president John Hlophe lobbied two justices of the Constitutional Court in favour of Jacob Zuma. Though the JSC found him guilty of gross misconduct months ago, and though the constitution makes provision for suspension pending impeachment, he remains the public image of justice in the Western Cape.

Freedom Under Law has repeatedly called on the JSC to recommend his suspension to the president: perhaps the action now taken against the public protector will galvanise them into action.

Judith February and Johann Kriegler, Freedom Under Law

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