The Constitutional Court reminded us in March 2016 that the public protector commands wide-ranging powers that leave no lever of government power — including the highest chambers thereof — above scrutiny and that this would inevitably result in what the court termed “coincidental embarrassment and censure” on the part of those whose conduct would be under the spotlight.
In that famous Nkandla judgment, the court cautioned, however, that, in doing her job, the public protector would not come out unscathed because mere allegations of improper or corrupt conduct were bound to invite an unfriendly response.
Echoing its 1996 ruling that the text of the draft Constitution did not comply with a constitutional principle dealing with the safeguards that needed to be guaranteed for the security of tenure of a public protector, given the kind of work the office does, the court held that unfavourable findings of unethical or corrupt conduct, coupled with remedial action, would probably be strongly resisted in an attempt to soften the inescapable reputational damage.
“It is unlikely that unpleasant findings and a biting remedial action would be readily welcomed by those investigated,” Chief Justice Mogoeng Mogoeng said when handing down the watershed Nkandla judgment.
The court had, no doubt, the likes of South African Communist Party (SACP) deputy secretary general, Solly Mapaila, in mind. Although he has not been the subject of any of the public protector’s investigations, he clearly is peeved at its findings affecting those he is sympathetic to.
Mapaila, who recently made disparaging remarks about the widely respected anti-apartheid struggle icon, Robert Sobukwe, only to backtrack embarrassingly a few days later under duress, has of late been on a rampage, spewing vitriol at the public protector.
Yesterday’s policy conference for the National Education, Health and Allied Workers’ Union provided a platform for him to launch into yet another ill-considered diatribe at the public protector, making disturbing accusations against Busisiwe Mkhwebane without a shred of evidence — all in an apparent attempt to appease those she has or is holding to account.
He called her a “hired gun of the ‘fight back’ agenda” who is used by “rogue elements within the intelligence [community]”, among many other things. It has become fashionable for those desperate for attention to pick up a megaphone and bark such nonsense for expediency and to grab headlines.
Those on whose behalf he is denigrating the public protector must be pleased with his performance. But, for some of us, his theatrics only served to evoke a sense of déjà vu.
It was Mapaila’s party, the SACP, which, after the release of the Nkandla report in 2014, vilified the public protector, Thuli Madonsela, saying she abused her power and played into “anti-democratic regime- change agenda that seeks to portray the entirety of government as corrupt”, with its youth wing saying she was “not God”.
The party also questioned the timing of the release of the report and went so far as to label the Nkandla saga “white people’s lies”.
Later that year, in the wake of Western Cape high court Judge Ashton Schippers’s ruling that the public protector’s remedial action was not binding, the public protector was once again at the receiving end of the party’s tirade.
She was accused of misrepresenting the powers of her office, having a scant understanding of the law, cynically manipulating the role of the office to give it the powers it did not have and usurping the powers of the judiciary.
Mapaila wrote in a blog that Madonsela acted as though her office was above all other institutions supporting democracy.
His latest attacks, which must be seen in the context of his party’s deep-seated dislike for the office of the public protector dating back to the Nkandla days, are premised on the tired and unproven narrative that Mkhwebane is involved in factional battles of the governing party.
He has singled out investigations involving Public Enterprises Minister Pravin Gordhan, alleging he is being targeted.
Mapaila must read the Nkandla judgment, especially the part that refers to how the powers of the public protector are not meant to bow down to anybody, including those whom she might see as inherently virtuous, and tell the public exactly whose alleged conduct the public protector must investigate and whose she must dismiss on a hunch — and the reasons therefore.
He cites two reports of Mkhwebane’s that have been set aside by the courts as grounds for her removal from office as though such court decisions are a new phenomenon. For his information, several other public protector reports, not written and signed off by Mkhwebane, have also been set aside by the courts in the past 30 months on grounds of “irrationality” and “unreasonableness”, among other things.
Mapaila then makes a bizarre remark, as quoted by Eyewitness News, that Mkhwebane is increasingly “investigating moral cases and not criminal matters”. You’d expect him to at least be knowledgeable about the terrain he is venturing into before criticising people who know what they are doing.
Someone needs to whisper to him that ethics are essentially moral principles that govern behaviour and conduct, and that the public protector does have a mandate to enforce ethics among presidents, deputy presidents, ministers, deputy ministers, premiers and MECs in terms of the Executive Members’ Ethics Act. An important point that seems to escape Mapaila is that the public protector is not legally empowered to investigate criminal conduct.
His unwarranted attacks on Mkhwebane border on contempt for the public protector. We challenge him to produce evidence to the effect that she is being used by “rogue intelligence units” to further the interests of a faction of the governing party or retract the statements and apologise, failing which the public protector will consider taking legal steps against him.
Oupa Segalwe is the acting spokesperson for the public protector