Newly appointed Public Protector Advocate Busisiwe Mkhwebane took over from Thuli Madonsela on Saturday.
In the last period of her term, former public protector Thuli Madonsela – fresh from magnificent victory over a sitting president in the Nkandla debacle – was showered with honours and plaudits at an astonishing rate.
Perhaps, right at the end, that popularity went to her head. Her rushed release of a half-baked investigation into state capture suggests as much, as does her logistically and legally troubling order that the remainder of the investigation be done not by her office but by a body to be established through, yet be independent of, the presidency.
Perhaps those decisions were rooted in self-importance or perhaps they were the product of a clear-headed assessment that all the alternatives were worse.
When it comes to her successor, Busisiwe Mkhwebane, there are no such doubts. Before receiving any honours, and having been lauded only by fringe elements with dubious motives, Mkhwebane has displayed hubris of monumental proportions.
Mkhwebane made headlines last month by drafting her own revision to a clause of the Constitution, then imperiously ordering that it be implemented. She made more headlines this week when she, somewhat grudgingly it seemed, allowed that this may have exceeded her powers – while insisting her intentions had been correct and that it had all been a silly mistake of phrasing.
Yet her intent to remove currency protection from the constitutional mandate of the Reserve Bank was only an example – albeit an eye-popping one – of her arrogance. It is also the only one she has stepped back from.
Mkhwebane wants Absa to pay the state back for an apartheid-era loan to Bankorp, a troubled institution Absa later bought. That the loan had its problems is pretty well undisputed. That setting this historic problem to rights would be good is obvious. That over the course of decades and two formal investigations nobody has been able to find a just way to do that should have been a warning.
But Mkhwebane, we now know, is not one to take heed of warnings.
In trying to fix the Bankorp mess Mkhwebane has casually usurped the powers of Parliament, the president and the Special Investigating Unit. She has rejected, for no reason she has provided, the economic reasoning of the Reserve Bank, the treasury and two finance ministers. She has ignored inconvenient laws and evidence, or substituted those with personal opinions.
She has also, according to the Reserve Bank, the minister of finance and Absa, abandoned the idea of fairness. Which is why they, as well as Parliament, had to turn to the courts to protect them from the public protector.
And thankfully the courts will protect them, and the country, from Mkhwebane. The damage her ego could otherwise do is incalculable. Left to her own devices she would wave away as too cumbersome to bother with guarding against inflation, which robs the poor of purchasing power. She would dismiss as too irksome to take seriously the law of prescription, which guards the poor against over-eager debt collectors.
She would leave to their own devices banks on the verge of collapse, and the depositors in those banks plus the broader financial stability be damned, because, well, because she says so, as best we can follow what passes for her reasoning.
But the cost will be high. Mkhwebane had to surrender on her Constitutional amendment. If she does not similarly capitulate on other aspects, including her findings of a debt owed by Absa and that Reserve Bank lifeboats for banks are wrong, then she will lose, and lose badly, in court.
There is a certain grim satisfaction in watching a righteous humbling of this kind. Yet the last three years have proven just how badly South Africa needs a strong public protector. Watching Mkhwebane drag down her office is going to be painful.
It’s a pity we can’t simply rewrite the part of the Constitution that makes it nearly impossible to remove her before her seven-year term expires.