JOHANNESBURG — When President Jacob Zuma appointed Mogoeng Mogoeng to the role of Chief Justice, pundits heavily criticised the move, slamming Mogoeng’s track record and apparent patriarchal, religious views. Years later, critics were eating their hats when Mogoeng delivered the most damning constitutional court finding against a president that the country has ever seen. Could the same be said of new Public Protector Mkhwebane in future? She has already shown a huge level of incompetence by doing a 180 on her call for the Reserve Bank’s mandate to be changed, as she has backtracked to a large degree. At the same time, she is also opposing Zuma’s challenge of her predecessor’s State of Capture report. The situation, on the surface, can seem confusing. Where exactly does she stand? Well, as Errol Horwitz suggest below, perhaps Mkhwebane has seen the light (and a future without Zuma) and she now has the opportunity to correct her previous mistakes. But, as Errol also says, in a second open letter to Mkhwebane, she better not screw up, otherwise, history will judge her harshly. – Gareth van Zyl
By Errol Horwitz*
The expression ‘Wonders never cease’ came to mind when you withdrew your recommendations on amending the Constitution and changing the Reserve Bank’s mandate. Moreover, your decision to oppose President Zuma’s application for review of your predecessor’s report on state capture was also ameliorative of perceptions of a lack of accountability that has corroded public respect and confidence for your office.
As a consequence, I am sending you a follow-up open letter, but with less embedded sarcastic ‘ouch’. Instead one that may provide some guidance for you to take remedial action against those bent on plundering and looting the country’s resources.
My earlier open letter to you was published in Biznews, self-described as “The Rational Alternative”. As I was unaware whether you read Biznews, copy was emailed to you as well. If you are unfamiliar with Biznews, its objective and rational content will serve you well, especially in preventing a repetition of your past mistakes. As someone once said: mistakes are not a problem, not learning from them is.
I know you have taken flak for unlawfully instructing parliament to amend the Constitution, and for expanding the central bank’s mandate. In response you rightly decided, on senior counsel’s advice, not to oppose the central bank’s application to set aside your recommendation. Why it was necessary to incur the cost of senior counsel to advise you of the unlawfulness of your instruction defies explanation. The doctrine of separation of powers is not rocket science, especially for one trained in the law. You alone are to blame for opening the door to gale force winds of incompetence leveled against you.
Following your complete 180, opposition parties wasted no time calling for your resignation or removal. They were justified in doing so, because your foolhardiness was not simply confined to lack of competency or capture, but also for causing unnecessary litigation costs in setting aside your recommendation, as well as considerable damage to an already crippled economy. The total impact to the economy has yet to be determined, but rest assured it must be in the billions. This cannot, nor should it, leave you with a warm and fuzzy feeling knowing the damage you caused.
Conversely your decision to withdraw your recommendations, when you did, must be applauded inasmuch as it may have served as a buffer against further inexorable damage to the economy. Your decision was an unexpected departure from the usual frivolous and indefensible delaying tactics employed by your comrades, notably government ministers, to mask their appallingly incoherent and irrational decisions.
There is a collateral cause for concern you must take cognizance of in the aftermath of your decision to withdraw your recommendations to parliament. Instead of a plain vanilla mea culpa, your spokesperson in a radio interview raised the ante by positing that you did not get the law wrong. Instead she claimed the confusion was technical in nature due to poor crafting of language, all bundled up in an error akin to a “typo”. Nonsensical and unintelligible waffle comparable to Bill Clinton’s infamous parsing of the meaning of ‘is’ is.
This is not the time to attempt to exculpate yourself from a charge of incompetence. You should have resisted the temptation to justify your past actions. In this respect your spokesperson’s recent radio stations interview was proof enough of a puerile attempt at damage control going horribly wrong. Your focus should be on demonstrating an unswerving fierce impartial commitment in the performance of your clearly defined statutory responsibilities. To do so, you need to cast off the cultural shackles of prolonged government service that scorns personal initiative and independence in favour of slavish adherence to a committed routine devoid of active intelligence. This condition was apparent during and after your maiden presentation to parliament – a presage of who you really are – another presumed dyed-in-the-wool Zuma lackey.
Public Protector Mkhwebane's concession against SARB's legal case is an admission of gross incompetence.Quitting is best for her integrity.
— Iraj Abedian (@IrajAbedian) July 11, 2017
But, as I said earlier ‘wonders never cease’ in that you now seem to have unshackled yourself from years of robotic government service. Your decision to oppose Zuma’s application to review your predecessor’s state capture report is indicative thereof. Whatever the cause for your epiphany is secondary to your understanding of your mission to strengthen South Africa’s constitutional democracy. You demonstrated this by joining other respondents in the litigation opposed to Zuma appointing his choice of chairperson and setting the terms of reference for the inquiry into state capture. The reason is obvious: Zuma has a gigantic personal stake in the outcome. It would be analogous to allowing a fox to run wild in the henhouse!
When you issued your bombshell report to amend the Constitution and expand the central bank’s mandate, the outcry was loud and clear: resign or be removed on grounds of incompetence and/or capture. I too wanted your head on a platter, but since then have taken a step back. The reason: you have given some indication of being your own person without an appearance of influence by others. Let this be the norm from hereon.
An essential component for a successful term as Public Protector, besides high standards of integrity and impartiality, is to surround yourself with intelligent, educated, articulate and savvy advisors. Beware of suck-ups, or yes-men or women who agree, support and praise you all the time. They isolate you from reality and distort your worldview. Would it be a stretch to suggest that you may need to reevaluate the composition of your inner circle? Not a stretch at all, because if they were worth their salt, they could have conceivably made you think twice before embarking on a fool’s errand.
As you probably know political commentators have expressed cautious optimism because of your 180. You therefore have an obligation to ensure that their optimism is well-founded, and not a manifestation of irrational exuberance.
It has been easy standing with your ANC comrades. Now, as public protector, it takes courage to stand alone, Stand alone as did your predecessor, and your courage will speak for itself. Whether you will leave an enduring legacy for future public protectors to emulate will depend on the straightness of the tracks you leave. To put it bluntly: “Don’t blow it”.
- Errol Horwitz was a political activist in the 60’s, and returned to South Africa a few years ago, after residing abroad for more than three decades.