Public Protector Busisiwe Mkhwebane. Picture: Gallo Images/Darren Stewart
Public Protector Busisiwe Mkhwebane. Picture: Gallo Images/Darren Stewart

When Busisiwe Mkhwebane took over as public protector in 2016, one of the first changes she made at the office’s Brooklyn headquarters was to switch over the television channels to the Gupta-owned ANN7. It proved to be a harbinger of what was to come.

Mkhwebane’s conduct, or rather misconduct, is well known by now. The way she has used her office to defend and protect the faction aligned to former president Jacob Zuma is evident in just about every report she’s delivered — and in how these contentious reports are being set aside.

A cynic might be tempted to think her reports were penned by the doyen of radical economic transformation (RET) himself, ANC secretary-general Ace Magashule. Haphazard thinking, logical fallacies and outright errors have been features of her reports — whether they advocated nationalising the Reserve Bank, or concerned donations to President Cyril Ramaphosa’s 2017 ANC election campaign.

This week, she suffered perhaps the most devastating blow to her credibility as the incumbent custodian of a key institution which, in theory, is meant to protect SA’s democracy.

The high court in Pretoria couldn’t have been more lacerating in its critique as it set aside her finding that there was a "rogue unit" at the SA Revenue Service (Sars). In her report, she’d ordered Ramaphosa to "discipline" public enterprises minister Pravin Gordhan.

This should be the end of the "rogue unit" saga, but given how impervious the RET faction is to facts, you wouldn’t bet on it. The grouping needs this narrative to beat Gordhan with, something it has been doing since Zuma installed his lackey Tom Moyane at Sars in 2014 — a move which, let’s remember, brought the tax agency to its knees.

But the court has now conclusively dismissed the notion, concluding her report was "the product of a wholly irrational process bereft of any sound legal or factual basis". The judges said Mkhwebane "approached her investigation with a preconceived notion, determined to make adverse findings against Gordhan and [former Sars deputy commissioner] Ivan Pillay, thereby promoting the false rogue unit narrative".

Were this an aberration, it would be bad enough. But this is the fourth high-profile investigation by her office which has been set aside, accompanied by a scathing assessment of her competence and questions over her intentions.

It looks for all the world as if Mkhwebane has become the RET faction of the ANC’s fifth column.

And it couldn’t have come at a worse time for her, as it coincides with a parliamentary process to assess her fitness to hold office. A panel headed by retired Constitutional Court justice Bess Nkabinde has to assess whether there is a prima facie case to justify an inquiry into her fitness to hold office.

From the judgments against her — a highlights package of which includes being called out for lying under oath and conducting investigations in a biased manner — you’d imagine such a probe could only go one way. But if the Nkandla firepool episode — in which a minister argued that a swimming pool isn’t a pool — is anything to go by, nothing should be taken for granted.

If the high court felt it necessary to bring this week’s judgment to the attention of the Legal Practice Council, there is little scope for parliamentarians to argue that all is well.

South Africans should not only reject a "protector" with such a frosty relationship with the truth, they should also reject any party that seeks, at this point, to defend the indefensible.

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