OPINION: About fear, favour and prejudice

Norman McFarlane

What are we to make of the knockdown drag out fight going on between President Cyril Ramphosa and public protector (PP), Advocate Busisiwe Mkhwebane?

And that it is a fight between Mr Ramaphosa and all he stands for on one hand, and Ms Mkwhebane and all she stands for (whatever that might be) on the other, is beyond dispute. Her pursuit of Pravin Gordhan is a proxy in this conflict.

By comparison with the spat between former president, Jacob Zuma, and former PP, Thuli Madonsela, over her Nkandla report, this conflict has far greater consequences.

Mr Zuma’s constitutional delinquency was confirmed when the Nkandla matter ended up at the Constitutional Court. In her latest sally, Ms Mkwhebane accuses Mr Ramaphosa of being constitutionally delinquent because he chooses to not act on her report about the SARS/Gordhan/Pillay/Magashule pension matter, pending a judicial review.

And it’s not as if Mr Ramaphosa failed to formally notify her of his intention, once Mr Gordhan opted to take her report and remedial action on review, even though he is legally not obliged to do so.

As in all similar occurrences, including Ms Madonsela’s Nkandla report and remedial action, once taken on judicial review, the process is stalled until the conclusion of all pending court actions. If this matter goes to the Constitutional Court, which now appears inevitable, it will be months before a final ruling is handed down, whatever that might be.

What Ms Mkhwebane seems to misunderstand, is that despite the statutory prominence of her office, she is punching far above her weight when she accuses Mr Ramaphosa of constitutional delinquency.

She ought to take a leaf out of her predecessor’s book. By publicly accusing Mr Ramaphosa of constitutional delinquency, Ms Mkhwebane is effectively taking upon herself, powers which are clearly not vested in her office. Ms Madonsela fully understood that the only institution that may rule on constitutional matters, is the apex court.

What is even more surprising, is Ms Mkhwebane’s apparent amnesia about her recent fray with the North Gauteng High Court over her CIEX/Bankorp report, in which she instructed Parliament to amend Section 224 of the Constitution, which sets out the mandate of the South African Reserve Bank (SARB).

The judgement is well worth reading, for it tenders in embarrassing detail the blunt criticism which the report elicited from SARB governor, Lesetje Kganyago, and then speaker of the National Assembly, Baleka Mbete.

In its conclusion, the bench delivered a stinging rebuke over her conduct: “Suffice it to say, the public protector’s explanation and begrudging concession of unconstitutionality offer no defence to the charges of illegality, irrationality and procedural unfairness. It is disconcerting that she seems impervious to the criticism, or otherwise disinclined to address it.

“A dismissive and procedurally unfair approach by the public protector to important matters placed before her by prominent role players in the affairs of state will tarnish her reputation and damage the legitimacy of the office. She would do well to reflect more deeply on her conduct of this investigation and the criticism of her by the governor of the Reserve Bank and the speaker of Parliament.”

Ms Mkhwebane was also slapped with a personal cost order for 15% of the SARB’s legal bill in the matter, and her application for leave to appeal was dismissed. The Constitutional Court subsequently heard an application for leave to appeal the personal cost order in November last year, but has yet to rule on the matter.

In May, the North Gauteng High Court delivered an equally stinging rebuke in its ruling after its review of Ms Mkhwebane’s report into the Vrede dairy project. It found she had “failed in her duties under section 6 and 7 of the Public Protection Act and section 182 of the Constitution” and “set aside and declared unlawful, unconstitutional and invalid” her entire report and remedial action.

Read with the outstanding matter of her report into the R500 000 donation to Mr Ramaphosa’s CR17 campaign, and most recently, her report into the long-discredited SARS/Rogue Unit matter, in which she – predictably – finds against Mr Gordhan, the inevitable question arises: is she meddling in the factional battle raging within the ruling party, and if she is, which side will win, in this high stakes game?