/ 17 March 2020

Politicians should take responsibility for Busisiwe Mkhwebane’s appointment

Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane. (David Harrison/M&G)

Busisiwe Mkhwebane is facing an unprecedented challenge to her continued role as Public Protector. Members of Cabinet and the ANC are calling for the public protector to fall on her sword, citing a kind of nobility not seen in the party’s own ranks in decades. The Democratic Alliance too has called for her head, labelling her as “tainted and compromised”. The Economic Freedom Fighters remain in Mkhwebane’s court and appear ready to carry her on a red wave to the Constitutional Court. What these political parties should do is apologise to the nation for doing a shoddy job in appointing Mkhwebane in the first place — and disregarding the Public Protector Act in the process. 

The Public Protector Act provides a clear picture of the calibre of candidate who should be sought out. It calls for a “fit and proper person” and then sets out some very important criteria.

At the top of the list a candidate should be: a judge of the high court; or, an admitted advocate or attorney who has practiced for a period of at least 10 years; or, someone who has qualified to be admitted as an attorney and has lectured law at university. 

Mkhwebane had not served a judge and, although she was admitted as an advocate, she has never practised as one. 

She has served in various government departments, including at the department of home affairs as the director of country information and co-operation management. Although this job involved elements of the law, I doubt that it can be compared to actual legal practice, which requires direct involvement with legal prescripts on a daily basis. 

The Public Protector Act does allow candidates who are not lawyers, but Mkhwebane does not fit this criterion either. Someone who has been a member of Parliament for a cumulative period of 10 years could qualify for consideration, as would a candidate who has “specialised knowledge … in the administration of justice, public administration or public finance”. 

Looking at these criteria and the explanation that Mkhwebane provides of her own experience as a legal practitioner, one wonders how she rose above the other candidates. Did the MPs simply just like her, or was her appointment an act of deliberate sabotage? 

Of the 14 candidates initially shortlisted, two were serving judges who themselves had gone through a rigorous appointment process of interviews with the Judicial Service Commission. 

The interview process

That list was whittled down after a speedy round of interviews, held in quick succession. Watching the video of Mkhwabane’s interview from August 11 2016, the MPs seem in a hurry to conclude the process. There are two rounds of questions and only one that speaks to Mkhwebane’s legal experience.

The IFP’s Themba Msimang asks if she has “been engaged in the robust practice of the law. Either as an advocate or as an attorney.”

“I’m asking this because this is an essential requirement,” he adds. Mkhwebane’s response did not speak to this essential requirement and should have disqualified her at this stage, but here we are. 

She tells the panel that she “practiced as a prosecutor”; a close reading of her CV shows that this was for three years, from 1994 to 1996, working on “criminal cases and maintenance cases”.  

She later joined the department of justice as the international affairs director, which, according to her CV, involved “assisting the director with the monitoring of treaties RSA has with other countries”. 

Mkhwebane portrays her work at home affairs as constituting “robust legal practice”, but I would argue that she worked in a niche area and was not involved in broad or robust legal practice at the level of a working lawyer. 

“While working at the department we had a lot of litigation on refugee matters and a lot of delays. As well making sure that on the administration part or the management part, then we didn’t have backlogs,” she says. 

Mkhwebane tells the panel that she has “never practiced” as an advocate and was admitted based on her experience in the justice department. Surely the panel should have disqualified her at this point. Instead, chairperson Makhosi Khoza tells Mkhwebane that she’s doing very well in the interview. 

The MPs skip merrily along, asking Mkhwebane a range of other questions, including whether she had any active businesses (she was involved in a few stokvels but nothing serious), how she would deal with breaches of the executive code of ethics (she would use the powers provided in the act, she said) and why she referred to herself as a “person of prestige and influence” (Mkhwebane explains that she conducts her work with integrity).

When these interviews are concluded, the committee meets and comes up with a shorter shortlist, whittled down to these five: Judge Sharise Weiner, Judge Siraj Desai, advocate Busisiwe Mkhwebane, Professor Bongani Majola and Muvhango Lukhaimane.

Reaction to the shortlist 

At the time, the Council for the Advancement of the South African Constitution (Casac) said it was shocked by the shortlist because the deputy public protector Kevin Malunga had been left off, as had former Special Investigations Unit head Willie Hofmeyr, who had extensive legal experience. 

Ultimately, Mkhwebane was endorsed by the majority of members of the committee, although in a debate in the National Assembly the DA’s Glynnis Breytenbach said the party would not endorse her because she was simply not the best candidate for the position. The EFF initially endorsed her appointment but within months of her appointment said they regretted it, calling her a “Gupta puppet”, although the party is yet to qualify this statement.

Breytenbach said Mkhwebane was “illogically preferred over other candidates. She has little or no practical experience to justify such an appointment”. 

The evidence of this lack of experience and legal acumen has played out in the repeated legal losses Mkhwebane has faced, complete with scathing judgments questioning the logic of her decisions. 

Of course, MPs will not admit they bumbled this appointment, but if they have any decency they will propose amendments to legislation and the Constitution that will protect this office from future disasters of this nature — whether Mkhwebane remains in office or not. 

The fact that the appointment process is purely political is deeply problematic, considering that the public protector is charged with overlooking the ethical conduct of these same politicians. It would be like having schoolchildren be the only ones involved in the process of selecting their teachers. They might choose the nicest candidate who might give them longer lunch breaks and allow talking in class, but they won’t necessarily choose someone who is “fit and proper” because that would potentially negatively affect them.

Considering the binding nature of the Public Protector’s rulings and the fact that, like judges, the incumbent cannot easily be removed, a process similar to the one used to appoint judges is far more suited. The Judicial Service Commission is made up of a variety of stakeholders, as dictated by the Constitution, including politicians, lawyers, attorneys, judges and legal academics. 

Left unchanged, the current appointment process will leave South Africans with another institution that can deliberately be weakened to ensure that those people who want to loot and live off “capture” can do so with impunity. As we’ve seen, an inept and ill-qualified public protector can be as damaging as a captured one. 

Dianne Hawker is the special projects editor at Newzroom Afrika