Public Protector Busisiwe Mkhwebane. Picture: SUPPLIED
Public Protector Busisiwe Mkhwebane. Picture: SUPPLIED

Somebody should probably head over to the public protector’s office in Pretoria and hand Busisiwe Mkhwebane a copy of the constitution. You’d think she’d have one already, given that her office derives its power entirely from chapter 9 of that document. But it would seem not.

A scathing ruling by judge Ronel Tolmay in the high court in Pretoria this week illustrates how Mkhwebane seems to have been confused about whether her job is to "strengthen constitutional democracy" or to protect political functionaries from accountability.

Tolmay declared Mkhwebane’s report into the corruption-tainted Vrede Dairy farm project "invalid" and "unconstitutional".

To recap, Mkhwebane was asked to investigate how it was that R200m meant to buy cattle for black farmers in the Free State ended up in the pockets of the Gupta family — and was then used to pay for a wedding at Sun City.

But Mkhwebane contorted herself into knots in her report to avoid making any finding about the culpability of the Free State premier at the time, Ace Magashule, as well as the province’s MEC for agriculture, Mosebenzi Zwane. Critics and analysts branded it a shameful whitewash.

Tolmay confirmed as much. On its most benign reading, the ruling suggests SA’s public protector has no clue what her job is. A more cynical interpretation would be that she blatantly disregarded her constitutional duties for some other, as yet unclear, nefarious purpose.

The judge ripped into the fact that Mkhwebane ignored information at her disposal and conspicuously disregarded the very people who should have been the beneficiaries of the project.

Mkhwebane’s flimsy argument was that the DA should have interviewed those "beneficiaries" — not her. While DA leader Mmusi Maimane went so far as to bring those beneficiaries to her office, Mkhwebane argues the DA should have been the ones to take their statements. It is just as preposterous as it sounds.

Tolmay describes the notion of leaving her job to the DA as "totally inappropriate", which it self-evidently was. "The beneficiaries were the people who should have taken centre stage in this investigation, as they were the people, the vulnerable ones, for which her office was specifically created and who were deprived of an opportunity to benefit ... instead they were ignored," Tolmay wrote.

Those words succinctly capture the argument for why Mkhwebane should no longer stay in her role. Given that this is the second judgment in which her competence has been brought into question, after the debacle of her Reserve Bank report, you’d think Mkhwebane would have the self-respect to resign voluntarily.

Evidently, she’s not about to do so. But this needn’t be her choice. Now, there is a good reason why the president shouldn’t have the power to arbitrarily remove the public protector. Had it been this way, Jacob Zuma would have ejected Thuli Madonsela after her report on Nkandla.

But the constitution also stipulates that the public protector must be "independent" and "impartial", exercising power without "fear, favour or prejudice". When that doesn’t happen, the constitution envisages a scenario in which he or she may be removed.

There are prerequisites, of course: there has to be "misconduct, incapacity or incompetence" and two-thirds of parliament’s national assembly must vote to remove her. Which means the ANC would have to come to the party. But if Cyril Ramaphosa’s "new dawn" is serious about accountability and the constitution, it should.

At such a fragile time, there is no place for a public protector who doesn’t protect the public.