OPINION: Cyril’s endgame?

Norman McFarlane

After seven years of robust performance from the office of the public protector, during which Advocate Thuli Madonsela investigated and reported without fear, favour or prejudice it has come as something of a shock to be taken back to the days of Lawrence Mushwana, whose tenure there was marred by a largely self-cultivated image as a lapdog of the ruling party. He seldom found against members of the ANC, and when he did, his remedial actions were, at best, tepid, hardly amounting to anything more than a slap on the wrist.

The appointment of Thuli Madonsela as public protector was said to be one of former president Jacob Zuma’s two greatest mistakes, the other being his appointment of Chief Justice Mogoeng Mogoeng.

His recommendation of Busisiwe Mkhwebane to the National Assembly as Ms Madonsela’s successor, makes it clear that he wasn’t about to compound his original error.

She is the fourth person to be appointed to the office of the public protector, and her appointment was not without controversy: the only dissenting party in the National Assembly debate that culminated in her appointment, the DA, accused her of having been a spy on
the State Security Agency’s payroll.

Since taking office in October 2016, Ms Mkhwebane has concluded a number of investigations and reports, but inevitably, it is the high profile reports which gain the most attention, particularly when they are controversial.

In her June 2017 Bankorp/CIEX bailout report she found the SA Reserve Bank (SARB) had unlawfully bailed out Bankorp to the tune of R1.125 billion, which she ordered Absa to pay back.

Bizarrely, her remedial action included drafting changes to the Constitution to nationalise the SARB, change its mandate to manage the currency, and an instruction to the National Assembly to effect these changes to the Constitution. Fast forward to a post cabinet lekgotla press briefing, and what ANC secretary general, Ace Magashule, discloses to journalists as a made decision, sounds eerily like what Ms Mkwhebane tried to do.

The SARB took her report on judicial review, and it was eventually set aside, and a punitive personal cost order made. The bench was scathing in its commentary on her behaviour: “The public protector did not conduct herself in a manner which would be expected from a person occupying the office of the public protector.  She did not have regard thereto that her office requires her to be objective, honest and to deal with matters according to the law and that a higher standard is expected of her”.

The February 2018 report on the Vrede dairy farm project in the Free State, which, although it found that there had been procurement irregularities, “gross negligence” and maladministration in relation to the project, completely ignored high profile ruling party figures, despite prima facie evidence of their involvement.

This report was also taken on review, found to be unconstitutional and invalid, and set aside.

Next up, she releases a report in which she finds against then finance minister Pravin Gordhan’s decision to approve early retirement of SARS deputy commissioner, Ivan Pillay, despite three other agencies – the Special Investigative Unit, the Hawks, and the National Prosecuting Authority – having concluded that there was nothing to prosecute.

Is it not just a tad too much of a coincidence, despite protestations from her office to the contrary, that the report was released days before President Cyril Ramaphosa announced his post-election cabinet, in which Mr Gordhan featured as Minister of Public Enterprises?

But there’s more: in her most recent sally, she has painted a large red target on President Cyril Ramaphosa’s back over a complaint from the DA about the R500 000 donation he received for his CR17 campaign, from facilities management company, Bosasa, which was deeply implicated in the Zondo commission into state capture.

Mr Ramaphosa did make a misstep when the question came up in Parliament for the first time, stating that the money was earned by his son, who had done consulting work for Bosasa, but he later recanted, and said that it had been a donation to his campaign fund.

Ms Mkhwebane submitted her interim report to Mr Ramaphosa, and he has taken personal charge of crafting his response, supported by some serious legal heavyweights. This is a measure of how little he can afford to have an adverse finding against him, that he breached the Executive Members Ethics Act, since he ran for president of the ANC and the country on a squeaky-clean, anti-corruption platform.

If Ms Mkhwebane finds against him, it may well give his many enemies in the ANC the ammunition they need to attempt to have him recalled. It will also cause any move to launch a review of Ms Mkhwebane’s suitability to hold office – she has thus far survived three requests for such a review – to be labelled a vengeful attack.

If she finds in Mr Ramaphosa’s favour after his representation – effectively a volte face – the inevitable whiff of suspicion will emerge that she is being soft on a high profile ANC politician, which, although not as damaging as an adverse finding, will still put him on the back foot.

The one question that seems not to have been answered, is perhaps the most vital: was the donation from Bosasa solicited, and if so, was Mr Ramaphosa aware that it was?

If it was not solicited, then what if the donation was a Trojan Horse designed to engineer Mr Ramaphosa’s downfall?