Who is pulling the public protector’s strings?
This key question arises from the very divided opinion about Busisiwe Mkhwebane, who has occupied the office of the public protector since late 2016.
Those defending Mkhwebane argue that she is simply fulfilling her constitutionally bestowed mandate. This group hides neatly behind the Constitutional Court judgment on Nkandla, which held that the public protector’s findings are binding.
Her critics say she is pursuing an agenda on behalf of a faction opposed to President Cyril Ramaphosa and ministers such as Pravin Gordhan who are at the coalface of unravelling the state capture network that has spread throughout the country’s state-owned entities.
Her investigation into Ramaphosa is based on a complaint from Democratic Alliance leader Mmusi Maimane. A considerable number of her investigations into Gordhan are based on complaints from the Economic Freedom Fighters.
Mkhwebane was hauled over the coals in court for glossing over the office of the former Free State premier Ace Magashule and former agriculture MEC Mosebenzi Zwane in the Vrede dairy farm investigation.
She was also accused of failing to give parties central to her findings in the report affecting Absa and the South African Reserve Bank a hearing and opting instead to meet the Black First Land First movement and former president Jacob Zuma.
Mkhwebane is an enigma wrapped in a mystery.
Does she have a political master or is she acting in line with her constitutional mandate? Time will tell. For now, evidence suggests there is a reporting line out there,given that a significant number of her reports have been successfully challenged and overturned in court.
What is critical is that — despite the office of the public protector potentially being occupied by someone whose loyalty to the Constitution cannot be trusted or guaranteed, the office has to be respected — the institution cannot be destroyed simply because of the individual occupying it. Recent experience shows that once destroyed, critical institutions may take years to recover.
The South African Revenue Service (Sars) is a key example. The recovery process of that institution will take a long time, given the brain drain under former commissioner Tom Moyane.
Moyane, like Mkhwebane, claimed in his early days in office that he was being attacked because of misplaced hatred. This week Mkhwebane claimed that she was poisoned and that God had placed her in that office and only He could remove her.
Moyane fought to the bitter end, in the face of evidence that he, together with dubious individuals heading Boston-based consultancy Bain,had put together a plan to redesign Sars months before he was even appointed to the post of commissioner.
The institutional redesign that followed saw critical, skilled Sars officials sidelined and eventually purged from the institution. The result was a cumulative R100-billion decline in revenue collection over the period of Moyane’s leadership of the institution.
This week Sars scored a key victory in the aftermath of Moyane’s destructive reign — the Cape Town high court rejected an application by alleged gangster Mark Lifman to prevent the revenue service from collecting outstanding tax from him.
The Nugent commission of inquiry into governance at Sars heard how key units at the tax agency had been weakened and how a “rogue” unit inside the institution was set up by Moyane to target investigators looking into high-profile cases such as Lifman’s.
Sars said in a statement this week that Lifman had applied to the court for relief after the tax agency committed, during the Moyane era, to “review” the assessments it had earlier issued.
This “review” was promised by an auditor at Sars’s Cape Town office, whose conduct the tax agency found to be irregular. The court set aside Lifman’s application, ruling that the Tax Administration Act did not provide for Sars to reconsider an assessment.
In the Lifman case long-standing, experienced investigators who targeted him and others were hounded by Moyane’s new unit, to the benefit of errant taxpayers — the institution was being repurposed to defy its own mandate.
This is what Mkhwebane risks if it is true that she is acting for certain individuals with ulterior motives. Like Moyane at Sars, she is best placed to inflict the maximum amount of damage to the institution.
At the heart of the debate about Mkhwebane’s conduct is how to ensure that the office she holds is protected; that the institution withstands an onslaught, whether it comes from outside or from within. The court findings thus far provide ample evidence to act against her instead of relying on conspiracy theories.
At the end of this battle, the office of the public protector has to remain intact and if removing Mkhwebane ensures that this is done, so be it.But it is critical that this is done fairly and within the ambit of the law.