JAUNDICED EYE

The seven-year running sore that was Busisiwe Mkhwebane’s tenure as the Public Protector has ended. 

Any relief may be short-lived. With the likely appointment of her deputy, Kholeka Gcaleka, to the post, a new suppurating mess is about to be created.

The same African National Congress-dominated Parliament that last year kiboshed an impeachment investigation into President Cyril Ramaphosa’s Phala Phala scandal, on Monday voted for Mkhwebane’s impeachment by 318-43, comfortably more than the two-thirds majority required. By lunchtime on Tuesday, the chronically sluggish Ramaphosa, acting with uncustomary vigour, had fired her. 

It was the culmination of a process — started by the Democratic Alliance against substantial resistance from the ANC and the Economic Freedom Fighters — that took a foot-dragging two-and-a-half years and cost around R160m. It seems that despite being suspended early last year and now being fired for misconduct and incompetence, Mkhwebane will still receive a R10m end-of-service gratuity, which is equivalent to about four times her annual salary.

Her legal team, headed by the noxious Daly Mpofu, deployed the same Stalingrad-style defence manoeuvres that have worked so well for former president Jacob Zuma. They were able to bill the State a cool R34m, which Mpofu described as “peanuts” for a man of his brilliance. ___STEADY_PAYWALL___

Eager to scatter more peanuts before Mpofu and friends, Mkhwebane has already announced that she will legally challenge her impeachment. She will be joined in this foolhardy venture by the EFF, cheered on by an entire shoal of parliamentary minnows: the United Democratic Movement, the Pan African Congress and the African Transformation Movement.

It’s not clear by whom these new fronts in lawfare will be paid for. Both she and the EFF have terrible statistics when it comes to their performance in the courts. 

The EFF has had the humiliation of consistently losing, on both costs and damages, against the likes of AfriForum. Mkhwebane had not only challenged and lost, all the way to the apex court, nine High Court decisions setting aside her Public Protector rulings, but in some, she had punitive personal cost orders against her.

On at least three occasions, the courts found her conduct egregious enough to warrant this sadly relatively rarely used judicial sanction. The judgments against her make for similarly damning reading, showing her to be a liar with only a rudimentary grasp of the law.

She is variously said to be characterised by: “bias”; “ulterior purposes”; “blatant disregard or concerning lack of understanding of her constitutional duties”; “ineptitude or gross negligence”; being “totally irrational”; and “acting in bad faith”. 

The Constitutional Court, to which she appears ultimately headed with her doomed appeal against impeachment, has identified her testimony as “not honest”, containing “a number of falsehoods”, and her conduct “falling far short of the high standards required of her office”.

At issue, then, is not whether she should have been impeached but rather how she survived to within months of the end of her seven-year term. And why was she chosen, after initially not making the shortlist, in the first place?

The answer to the first question is contained in the second. 

Mkhwebane was chosen as Public Protector because that institution — except for Thuli Madonsela, who fearlessly took on Zuma — has for its entire existence been headed by people chosen not for their legal credentials or fearlessness in defence of democracy, but rather for their degree of alignment to the ANC and their pliability. Political stooges, in other words.

Mkhwebane got the job in preference to some highly competent contenders not because of her abilities— her curriculum vitae listed as important career accomplishments her proficiency at using PowerPoint and a departmental merit award for clerical efficiency — but because she won the ANC’s career trifecta. She ticked the boxes of ethnicity, gender and political affiliation. 

And Mkhwebane’s troubles did not come from being stupid and incompetent but from being stupid and incompetent on behalf of the wrong camp. When Zuma got the boot, to be replaced by Ramaphosa, she made the mistake of throwing in her lot with the disgraced former president and the Radical Economic Transformation faction that is aligned with him through various proxy organisations and parties.

Even then the ANC, determined not to risk the factionalism within the party widening to a split, continued to back her against DA calls for her dismissal. The beginning of the end only came when she unwisely targeted Public Enterprises Minister Pravin Gordhan over a mythical SARS “rogue unit” and Ramaphosa over campaign donations, with reports being set aside by the courts. 

The final straw came when she again took on Ramaphosa, this time over the Phala Phala forex scandal. But she had misjudged her moment. The now more confident president, having routed the RET faction just months earlier in the December 2021 leadership election, suspended her within a day of her move. 

Mkhwebane’s supporters argue that her suspension and impeachment were politically motivated. ATM leader Vuyo Zungula says it was punishment for refusing to do the bidding of the ANC leadership: “If you are in public service and you don’t toe the line of the ruling party, the party will embarrass and chase you out of office,” he told the media.

Zungula and Mkhwebane’s other acolytes are, of course, absolutely correct. As with the top appointments made by the ANC to supposedly independent Chapter Nine institutions — like the Human Rights Council, where Mkhwebane once worked, as well as the Public Protector’s Office — the cadres are expected to toe the party line. With a few honourable exceptions, they are political stooges and should they ever seriously threaten the dominant ANC faction, they should expect to be shown to exit.

While Mkhwebane was dumb or unlucky and backed the wrong horse, her likely successor, Deputy Public Protector Kholeka Gcaleka, is an altogether smarter cookie. Not only is she an at least marginally better lawyer, but she knows on which side her bread is buttered. 

Her recent report letting Ramaphosa off the Phala Phala hook that Mkhwebane was trying to hoist him onto, was clearly based on political convenience. However, she pirouetted around all the evidentiary potholes that could swallow her, in a way that must fill her leaden-booted predecessor with envy. 

As I wrote in this column at the time: “By interpreting her mandate as narrowly as possible and at every turn ignoring the important in favour of the peripheral, Gcaleka was able to exonerate Ramaphosa of any wrongdoing of any kind, anywhere, at any time. 

“Whenever there was the danger of blame or responsibility attaching to the president, she deflected it by either uncritically accepting his version, or dodging it by deeming anything nettlesome to be beyond her statutory remit.”

It seems that Gcaleka has a great career ahead of her, should the opposition parties fail in their attempts to have the selection process started anew.

Unfortunately not so good for the democracy that she’s supposed to defend. Especially since that’s fraying fast under a multitude of assaults.

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