The Public Protector has become like a punch drunk boxer taking one knock after the other, but she is still on her feet with one side of a very vocal crowd egging on her to take another swipe at Public Enterprises Minister Pravin Gordhan and to ultimately keep fighting to get the big one, President Cyril Ramaphosa. The stacks are very high for her supporters, the loss of power and opportunities to stick their hands into the ample state cookie jar and for many of them the possibility of jail. The EFF’s motives are more obscure, but it is related to the fact that their backers may be targeted by SARS. Busisiwe Mkhwebane’s defeats in the high court and the Constitutional Court are stacking up like the various synonyms for incompetence and dishonesty that the courts are using in judgements again her. Her efforts to nail Pravin Gordhan and Cyril Ramaphosa, is also starting to hit her and the EFF in the pocket. On Thursday, 1st August, an urgent application by President Ramaphosa to have the implementation of remedial action ordered by the ombudsman against him suspended, will be heard after the case was postponed today because a judge could not be found. Accountability Now’s founder Paul Hoffman says Mkhwebane is a “loose cannon” who is rolling around the deck of the ship of state and needs to be “thrown overboard”. Paul was a guest on Rational Radio and he explained how this can be achieved. – Linda van Tilburg
Paul Hoffman says Mkhwebane, the loose cannon, “is going to break a couple of legs if she’s allowed to keep rolling… Let’s toss it overboard and get on with it as soon as possible.” He says she’s not doing the country or herself any good at the moment. Hoffman, who asked the Legal Practice Council to investigate the Public Protector, thinks the Constitutional Court judgement could be enough grounds for Mkhwebane to be dismissed.
He says people who want to have their name on the role of advocates in the High Court in South Africa cannot commit criminal offences and certainly cannot hold the court in the sort of contempt that Mkhwebane has done, not only in her response to the judgement but also in her attempts to misrepresent the situation. To lie under oath in affidavits filed before the court and “even deemed to display the level of gross incompetence which she has displayed in bringing her mind to the tasks, functions and obligations of the Public Protector.”
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Referring to the minority report written by the Chief Justice Mogoeng Mogoeng on the court decision against her; Hoffman says his report is not binding. He took a more lenient view but it is simply a different view and it did not get to grips with “the serious business end of the dishonesty and the perjury, and the misrepresentation that has been going on.“
The problem with the new Public Protector, Hoffman says, is that she sought to be a new broom sweeping clean when she started in 2016 and by January 2017, his organisation Accountability Now had already written to Parliament and said they were trying to get answers to important questions that go to the competence and honesty of the new Public Protector. Her answer to that was, “Report me to Parliament, I can’t investigate myself.” Hoffman said he responded, saying they were not asking her to investigate herself, they were asking for her to explain herself. When she ignored Accountability Now, they lodged a complaint.
The complaint was not investigated as Parliament was still in control of Zuma, who was only too happy to protect the Public Protector from proper scrutiny. Hoffman says he does not know whether this attitude still prevails in Parliament, but there are a lot of pessimists who say there are enough Zuma supporters or fight-back campaigners to make a two-thirds majority needed to dismiss Mkhwebane in the National Assembly impossible; this is what is required to spark the procedure for the President to dismiss her.
This has prompted Hoffman to take a different route, he has reported her to the Legal Practice Council. The council met on Friday 26th of July and they are studying the judgement to hold it up to the standards of the Constitution and will then decide whether they will either start disciplinary proceedings or simply apply to court for her name to be struck from the roll of advocates.
Hoffman says he can’t see her surviving this process. He says it is very clear; technically she has been found guilty of perjury because the courts and the judgement of the constitutional court revealed dishonesty and a lack of candour in the way in which she presented her case and deposed affidavits from which important material was lifted and from which misrepresentations were made.
Hoffman says that should Mkhwebane be struck off the roll, she can no longer serve as the Public Protector. Section 1A of the Public Protector Act sets out five or six categories of people who are eligible to put their names forward as a candidate. Mkhwebane put her name forward on the basis that she had been an advocate for more than ten years; that was her entrance to eligibility. If she is no longer an advocate, Hoffman says, she is no longer eligible to be Public Protector and must give way to a successor.
