ANALYSIS: 'Inept and negligent' Mkhwebane causing serious damage to her office
"The Public Protector has immense power, but with that powercomes great responsibility. If she fails, as she did in this case (to executeher duties), she must take full responsibility." – Judge Ronel Tolmay fromthe Gauteng High Court, in paragraph 28 of the cost order judgment.
The credibility and reputation ofPublic Protector Busisiwe Mkhwebane was on Thursday dealt another blow when theGauteng High Court made a personal costs order against her – the second in asmany weeks.
Last week the ConstitutionalCourt agreed that Mkhwebane should be held personally liable for a part of thecosts related to the SA Reserve Bank matter after the lower court previouslyfound the same. On Thursday the High Court concurred with the country's apexcourt in the Estina dairy matter and declared that Mkhwebane "failedcompletely to execute her constitutional duties".
She will now have to fork outhundreds of thousands of rands from her own pocket in terms of both matters,SARB and Estina.
Thursday's judgment is the latestin a string of high-profile defeats for the Public Protector, all of which havenot only diminished her own reputation, but that of the office that sheoccupies. Under her predecessor – whose tenure was not without its faults orcontroversy – the Public Protector assumed the role that the authors of theConstitution envisaged but which was not realised under the first two occupantsof the office.
Thuli Madonsela, who wassucceeded by Mkhwebane, was visibly and fiercely independent and effectivelychallenged political authority. The Constitutional Court twice supported herconvictions in matters that had far-reaching consequences for the country'sdemocracy, first in the Nkandla matter and secondly in the state capturematter.
Mkhwebane though has – with thesupport of the EFF – entered the political arena and challenged politicalopponents even though a succession of courts have signalled warnings aboutlegal strategy and judgement.
Tolmay's decision on Thursday isthe continuation of a theme around Mkhwebane that has now become the standardnarrative: she is incompetent, does not understand her role and flouts laws.
In both the recent ConstitutionalCourt judgment as well as the High Court judgment the role and importance ofthe Public Protector's office in the democratic architecture is explained andreinforced. The importance of this role, the courts explained, is that there isa higher burden on her office to act in good faith and in accordance with thelaw.
If the Public Protector does not,the penalty should be severe because the integrity of that office must beprotected.
Tolmay did not hold back in herjudgment.
"The failures anddereliction of duty by the Public Protector in the Estina matter are manifold.They speak to her failure to execute her duties in terms of the Constitutionand the Public Protector Act. In my view her conduct in this matter is farworse, and more lamentable, than set out in the Reserve Bank matter,"Tolmay says.
This is so because the SARB – aswell as Absa – had the means to challenge her report and to ensure justice. Butin the Estina matter those who were prejudiced were the poor and vulnerable –the very people she is supposed to defend and champion.
Mkhwebane, who has demonstrated asingular focus on President Cyril Ramaphosa and Public Enterprises MinisterPravin Gordhan, "turned a blind eye, did not consult with them and did notinvestigate the numerous irregularities that occurred…"
Those irregularities refer to theconduct of Ace Magashule's provincial government in the Free State.
"Her conduct during theentire investigation constitutes gross negligence. She failed completely toexecute her constitutional duties…" Tolmay finds.
Mkhwebane argued her limitedinvestigation is due to limited resources. But the court found her argumentshave no merit and that she attempted to "defend the indefensible".
"Her inability to comprehendand accept the inappropriateness of her proposed remedial action constitutesineptitude… the Public Protector failed the people of this country in the wayshe dealt with the investigation of the Estina dairy project."
And even though she argued thather office did not have enough resources to conduct a proper investigation, shestill engaged to separate sets of legal counsel to argue her case in thecountry's courts. This cost a lot of money "and showed a total disregardfor the taxpayers".
The court – not for the firsttime – has found Mkhwebane failed in her duties in terms of the law, that herconduct constitutes gross negligence and ineptitude and that she disregardstaxpayers.
She has now caused significantdamage to the office of the Public Protector. A full parliamentary inquirycannot be far off.