Busisiwe Mkhwebane under pressure

On Monday SA’s highest court delivered the most damning, and potentially career-ending, ruling yet given against a public protector, describing Busisiwe Mkhwebane’s conduct in investigating and defending her disastrous Reserve Bank report as "grossly unreasonable", "flawed" and characterised by "bad faith" and dishonesty.

The Constitutional Court’s judgment came just 16 hours after President Cyril Ramaphosa held an extraordinary Sunday evening media briefing, in which he announced that he would seek an urgent legal review of Mkhwebane’s report on a R500,000 donation to his ANC presidential election campaign from Gavin Watson, CEO of corruption-accused facilities management company African Global Operations (formerly Bosasa).

"My decision to seek a judicial review of the report should not be seen as a comment on the person, competence or motives of the public protector, but is motivated instead by a determination that the law should be applied correctly and consistently," Ramaphosa said. "I am taking this action in the firm belief that the president is not above the law, and nor is the public protector."

The Constitutional Court ruling and the president’s press briefing have made it clear that the office of the public protector is now in the midst of a boiling crisis — one that started simmering within months of Mkhwebane beginning her term.

As has become the pattern in SA’s fractured and fractious democracy, it now seems certain that the courts will again be asked to turn the temperature down on this potential disaster.

This week Ramaphosa will support public enterprises minister Pravin Gordhan in one of his two court challenges to Mkhwebane’s reports against him.

Gordhan has not held back in slamming Mkhwebane as being part of a "fightback" campaign aimed at undermining Ramaphosa’s "new dawn" project. Unlike Ramaphosa, Gordhan has focused squarely on Mkhwebane’s motives in his challenges to two of her reports — on the so-called SA Revenue Service (Sars) "rogue unit" and the early retirement he authorised for then Sars commissioner Ivan Pillay.

The president says these cases are not frivolous and raise a "justiciable dispute" — and he argues that he informed Mkhwebane he could not take action against Gordhan over the Pillay saga because doing so may result in him making an "unreasonable" decision.

The Pretoria high court will need to decide if the president’s stance is legally and constitutionally sound, or if it amounts to the open defiance of a chapter 9 institution, which is the accusation made by Mkhwebane.

Ramaphosa is this week also expected to lodge his application to review what is arguably the most pressing and immediate threat to his continued leadership of the ANC: Mkhwebane’s report on the Bosasa donation.

In a report that Ramaphosa has described as "fundamentally and irretrievably flawed", Mkhwebane not only determined that the president deliberately misled parliament about Watson’s donation to his campaign, but ordered that national director of public prosecutions Shamila Batohi investigate "prima facie evidence" of money laundering linked to Ramaphosa’s campaign.

Mkhwebane has ordered Ramaphosa to disclose the identities of all those who funded his hard-fought campaign to win the presidency of the ANC. And, in a statement that will undoubtedly provide ammunition for Ramaphosa’s critics and opponents within the ruling party, she suggested his funding may have exposed the president to the "risk" of state capture.

"We are now in an era where we are speaking about the ‘state of capture’ and ‘state capture’," Mkhwebane said in an interview after the release of her report on Ramaphosa.

"We should as a country be transparent; we should as a country not allow a situation where we repeat what’s alleged to have happened. We are busy with the state capture inquiry and we don’t want a situation where we have leaders, a president ... owing some favours or [have it] reflect as if he is beholden.

"They [the funders] can say no, they don’t expect anything — but at the end of the day, surely these people are benefiting something from the state."

When asked if she was saying Ramaphosa, the champion of a government clean-up, may himself be "captured", Mkhwebane said: "He exposed himself to the risk of this conflict."

She went on to question the interests of such donors, asking: "What businesses, what contracts, do they have with the state which make them donate so much money? I don’t think there’ll be a situation where you just give money just for giving money and not expect anything in return … and that is very wrong, because it then affects the decision-making and the priorities of the country."

The public protector’s response raises a justifiable concern about the potential influence that political funding may play in the decisions made by those who knowingly benefit from such funding. But it seems — at this stage — to be lacking a crucial component: evidence.

Mkhwebane has hinted that she knows who Ramaphosa’s primary donor may be, but says that is for him to disclose.

As part of her justification for finding that the president lied about not knowing who was funding his campaign, Mkhwebane also refers to "evidence in my possession". But she never details what that evidence is.

When Ramaphosa takes his challenge to the Bosasa report to court, Mkhwebane will be given the opportunity to present this "evidence" as part of the record that informed her decision-making. Until that evidence emerges, she appears to contend that her assurances must be enough to convince the country that Ramaphosa may be the ultimate embodiment of the "capture" he claims to fight against.

Unfortunately, the judgments against Mkhwebane, particularly the damning judgment given against her by the Constitutional Court, may make it difficult to take her at her word.

Only three years ago, SA’s highest court described the office of the public protector, then occupied by Thuli Madonsela, as "the embodiment of a biblical David, who fights the most powerful and very well-resourced Goliath", and "one of the true crusaders and champions of anticorruption and clean governance".

Now, in a majority ruling, that same court endorsed the Pretoria high court order that Mkhwebane pay 15% of the Reserve Bank’s multimillion-rand legal costs in its court battle to overturn her notorious Ciex/Bankorp report.

"The public protector’s entire model of investigation was flawed," justices Sisi Khampepe and Leona Theron wrote in the judgment. "She was not honest about her engagement during the investigation. In addition, she failed to engage with the parties directly affected by her new remedial action before she published her final report. This type of conduct falls far short of the high standards required of her office."

Eight months into her term, Mkhwebane caused what the Constitutional Court described as "severe harm to the SA economy" by ordering that parliament change the constitutional mandate of the Bank so that it was no longer focused on protecting the value of the rand.

This harm, the court noted, included "a significant depreciation in the rand and a sell-off by nonresident investors of R1.3bn worth of SA government bonds".

Mkhwebane did not attempt to defend her indefensible decision to order a constitutional amendment to the Bank mandate — something her then spokesperson attempted to blame on a "typo".

But she did defend her investigation of the apartheid-era Reserve Bank bailout of Bankorp (later taken over by Absa) and her order that the Special Investigating Unit recover that money.

During the course of that litigation, it would emerge that Mkhwebane had held unrecorded meetings with the State Security Agency (SSA) — at which she was briefly employed prior to her appointment as public protector — and the presidency.

In its ruling, the Constitutional Court noted that she was obliged to explain why her final report did not disclose these meetings or explain why she had held these meetings, but not met "with the parties most affected by her new remedial action".

It also questioned "why she discussed amending the constitution to take away the central function of the Reserve Bank with the presidency; why she discussed the vulnerability of the Reserve Bank with the SSA; and why she recorded and transcribed other meetings … but failed to record or transcribe the meetings with the presidency and the SSA."

The court explained that the meetings in question had given rise to "a reasonable apprehension" from the Bank that Mkhwebane was "biased against it".

Ultimately, the court found, she failed to provide these explanations — and instead gave responses that were "unintelligible" and dishonest.

According to the court, this meant the reasons for her secretive meetings remained shrouded in speculation — despite the fact that those directly affected by her economy-shaking remedial action, and the public itself, were entitled to know what had motivated them.

These findings will undoubtedly cast a long shadow over Ramaphosa’s legal tussles with Mkhwebane, an official mandated to be a voice for the voiceless and a watchdog against state abuses. SA’s highest court has made it clear that, at least in her handling of the Reserve Bank case, it cannot take the public protector at her word.

While Mkhwebane must now pay an estimated R900,000 in legal fees, that very damaging finding, which strikes at the heart of the trust she needs to be able to do her job, may end up costing her far more.