In October, former Public Protector Busisiwe Mkhwebane resigned her position as an EFF member of parliament to take some “rest”, as she put it. Within days the leader of the opposition, disgraced former judge president of the Western Cape High Court Dr John Hlophe, let it be known to Independent newspapers that Mkhwebane was not an MK party member, but would be welcome to join the party. Her husband is an MK MP, but whether joining that party comes with a seat in Parliament for Mkhwebane herself is not clear at this stage. 

Her position in MK appears to be confined to organising the party in her home province, Mpumalanga, presumably while not resting. The mere possibility that Mkhwebane may be, in due course, the MK party representative on the Judicial Service Commission has caused the CSO ‘Judges Matter’ to burst into print to explain why that would not be a good idea, being not legally feasible, or healthy for the JSC. Mbekezele Benjamin’s impassioned plea was given the heading “No, Busisiwe Mkhwebane cannot replace John Hlophe on the JSC”  by the Daily Maverick https://www.dailymaverick.co.za/opinionista/2024-10-21-no-mkhwebane-cannot-replace-hlophe-on-the-judicial-service-commission/. 

Quite apart from the fact that misconduct and incompetence underpinned the impeachment of Mkhwebane as Public Protector, the activities that led to her being the first leader of a Chapter Nine Institution to suffer so ignominious a fate all militate against the notion that she is a rational, let alone appropriate, choice for both parliamentary office and a seat at the JSC. These include the manner in which she conducted herself as Public Protector. Her dubious decision-making in her official capacity led to multiple successful judicial reviews, often with personal adverse costs awards against her.  She behaved atrociously  as a respondent in the impeachment proceedings, 

After an undistinguished career in the public administration, a mysterious posting to China and a suspicion (initially shared by the DA and EFF) that she was a spy, Mkhwebane managed to defeat two judges of the High Court who were shortlisted with her for the post of Public Protector. Some speculated that Jacob Zuma, having burnt his fingers badly by selecting Thuli Madonsela, the predecessor of Mkhwebane, used Judge Siraj Desai as a stalking horse for Mkhwebane.  Zuma, not one to make so expensive a mistake twice (Madonsela effectively buried him alive with her Secure in Comfort and State of Capture reports on his malfeasances) had no problem with appointing her as his preferred candidate.  Mkhwebane did not disappoint Zuma. She threw the workings of the Office of the Public Protector into disarray, behaving more like a deployed cadre of the National Democratic Revolution than an independent constitutional functionary tasked with promoting constitutional democracy in South Africa.

The decision by Mkhwebane to follow Zuma into MK was not long in coming, despite her professed desire for a rest. News of the move to MK was greeted by Sunday Times columnist Hogarth with this pithy observation:

“Coming home to roost

“So Busisiwe Mkhwebane finally got tired of pretending and openly threw in her lot with the man who seems to have always been her idol, Baba kaDuduzani. No more masquerading as a hard-working, impartial head of a chapter 9 institution. No more having to fake delight at wearing red overalls and addressing colleagues as commissars and fighters.

“There was such joy on her face as she told a media conference how at home she feels in the MK Party: “I joined the MK Party because I felt that it’s a home that understands the persecution of black people, the challenges which we are facing and fighting the captured system. So, I could relate to the constitution of MK — I am not lost, I am home.” 

The trouble with “relating to the constitution of MK” is that it is utterly incompatible with the tenets and values of the national Constitution. MK would prefer a parliamentary sovereignty such as prevailed under apartheid. The challenges of running the Public Protector’s office according to law started immediately after Mkhwebane took up office. One of the incomplete matters she inherited from Madonsela was a complaint against the handling by the State Security Agency of an investigation into apartheid-era looting of the coffers of the country prior to the dawn of democracy. The SSA engaged a retired British spook called Michael Oatley to investigate the prospects for recovery of the loot from the dying days of apartheid. In his report on behalf of his outfit called CIEX he indicated, on the basis of extensive research and some legal advice, that the prospects were good in many matters, and especially in what became known as the “ABSA lifeboat” case. Inexplicably, and despite the incurring of considerable expense, the SSA aborted the plans for recovery of the loot purloined by the departing old order operatives, whether in banks or elsewhere.

This about-face appeared to be a waste of taxpayers’ money, and led to a complaint to the Office of the Public Protector (OPP) by Accountability Now. The investigation of the complaint was all but complete by the time Madonsela’s term ended. It was taken over by Mkhwebane, and used as a weapon that suited the agenda of the Zuma ANC. Not only did she instruct Parliament to nationalise the SA Reserve Bank, she also took a very strong line against ABSA which led to early review proceedings against her by both institutions.

At an early stage in this fiasco the press got wind of the confidential preliminary report prepared by the OPP in the CIEX matter. Journalists began pestering Accountability Now for a copy of the report. Mkhwebane lied about the existence of the report in an email which led to a complaint to the justice portfolio committee in the National Assembly which read, in part:

  1. On Monday 9 January we began receiving media enquiries from interested journalists who contended that there was a preliminary or provisional report by the OPP in regard to our complaint about the Ciex contract with government and its alleged maladministration. We had not received any such document nor the usual antecedent request from the OPP for a confidentiality undertaking in writing and told the journalists so when they enquired.
  2. We then enquired with the OPP concerning the report by email. We were assured at 16h04 on 9 January that there was no such report. This assurance was given by email by the Public Protector herself and is in the chain of emails attached to this letter. We relayed the content of the email to journalists who continued to raise queries with us during the course of the ensuing week.
  3. On Friday 13 January we received two documents: one purports to be what is headed “provisional report” and the other purports to be a letter to The Honourable President of the Republic, under cover of which the report was sent to him. Both documents purport to have been signed last year in December by the Public Protector herself, as author. The letter makes several references to the existence of the report that the journalists had been enquiring about. This makes nonsense of the assertion by the Public Protector that there is no report.
  4. In order to demonstrate to Ms Karyn Maughan, a television journalist with eNCA, the source of our information that there was no report in the matter, we sent her a copy of the email to us from the Public Protector, as it was not sent to us in confidence and was not subject to any confidentiality agreement of the kind complainants are routinely required by the OPP to sign prior to release of information or preliminary reports to them that may require confidential treatment.
  5. The Public Protector found it “disturbing” that we had done so (it seems Maughan had sought an explanation for the denial of the existence of any report in the said email). The Public Protector complained to us by way of an email (in the chain attached) as well as furnishing us with a thoroughly lame explanation for the misleading content of her email of 9 January.
  6. The explanation does not stand up to scrutiny and is both scanty and confusing. It also raises serious issues of principle in relation to the way in which the new Public Protector is running her office and using the section 7(9) notice procedure without securing its confidentiality before doing so.
  7. In an effort to exact an accountable explanation for her apparently deliberately misleading conduct towards us in the matter we wrote to the Public Protector and raised 13 questions with her in the next email in the chain.
  8. The Public Protector then invited us to take the matter up with Parliament, saying that she cannot investigate herself, which we had not asked her to do. She tacitly declined to answer our legitimate queries.
  9. We responded to her by again seeking replies to the justifiable but unanswered questions we have raised both in relation to the matter and in relation to the general practice of the OPP around confidentiality of reports and section 7(9) notices. The previous Public Protector was astute to carefully obtain confidentiality undertakings prior to releasing preliminary or provisional reports and did not, as far as we are aware, use the section 7(9) notice procedure at all, or certainly not without first securing confidentiality.
  10. While the effectiveness of the confidentiality undertakings is not absolute and has not always secured the OPP’s reports against leaks to the media, it is certainly better than nothing to obtain them.  It may be that remedial legislation or a better administrative regulatory system should be put in place. The Public Protector has not replied to our last email in the chain attached and the deadline set in it has expired. We accordingly respectfully ask that you exercise your powers of oversight of the manner in which our complaint has been handled by the new Public Protector, both in general and in relation to the specific issues we have raised in the 13 unanswered questions we put to the Public Protector on Friday 13 January 2017. A good starting point would be to direct the OPP forthwith to answer the questions we have put in the emails attached to this letter.

[The full text of the correspondence exchanged is available on the Accountability Now website sub nom “Public Protector CIEX complaint]

To this day not one of the questions put to Mkhwebane has been answered. Under the protection that the Zuma-led ANC majority was able to afford her, the oversight body simply did nothing about the complaint at any stage: not even when the later excesses of Mkhwebane became more numerous and more serious. It is one thing to lie to a cheeky little NGO, quite another to lie on oath.

In the review proceedings that led to her report on the CIEX complaint being set aside, she was found by the Constitutional Court to have lied on oath in an affidavit to which she deposed in opposition to the case. 

Sadly, the Legal Practice Council and the General Council of the Bar did not do anything about Mkhwebane’s mendacity on oath. Even in the impeachment proceedings against her, the evidence leaders elected not to rely on the perjury, possibly because they had so much other ammunition against Mkhwebane that was not embarrassing to any oversight body, whether professional, administrative or political.

None of these sordid details detract from the finding of our highest court that Mkhwebane lied on oath when defending her misconduct in court. For an officer of the court to do so is unforgivable, all the more so when the offence is committed by the head of a Chapter Nine Institution. In any country with a properly functioning criminal justice administration, steps would be taken to charge and try any officials who find themselves in the situation in which Mkhwebane became mired. Although a criminal case of perjury was opened by OUTA, there has been no trial, no conviction and no sentence. Instead, a review of the decision of the National Director of Public Prosecutions not to withdraw all charges in the case was mounted and remains unresolved. There will doubtless be an appeal or two should the review fail. 

It bears mentioning that a sentence of one year in prison without the option of a fine would be enough to disqualify Mkhwebane from serving as a member of parliament should MK be so ill-advised as to nominate her.

Her impeachment proceedings were marred by their interminability, the questionable behaviour of her counsel and her ill-considered recusal applications which failed miserably. Her efforts to extract a gratuity of R10 million from the long-suffering taxpayers of SA foundered, and she was reprimanded by the court when she appealed in the recusal matters, ill-advisedly so.

While Mkhwebane is the author of much of her own misfortune, the blame for the mess made must also lie at the door of the National Assembly and, of course, with Zuma who allowed an unsuitable, under-qualified and less than fit and proper candidate to become Public Protector. The considerable damage done was exacerbated by the failure of the oversight body in Parliament to respond to the complaint made by Accountability Now, a complaint made way back in 2017, within three months of the appointment of Mkhwebane as Public Protector.

The views of the writer are not necessarily the views of the Daily Friend or the IRR.

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Paul Hoffman SC, a native of Johannesburg and a Wits graduate, practised law at the side bar from 1975 to 1980 and at the Cape Bar from 1980 to 2006. He took silk in 1995 and acted on the Cape Bench at the invitation of three successive judges president. After retiring from the Bar, he was founding director of the Centre for Constitutional Rights and co-founder, in 2009, of Accountability Now, both NGOs that promote constitutionalism. He is best known for his work on the irregularities in the arms deals, on the unconstitutionality of the Hawks and on the bread cartel case in which a general class action was developed by the courts. Yoga and long dog-walks on the beaches and mountains around his home in Noordhoek help keep him inspired to seek that elusive better life for all. He is the author of many articles and two books, Confronting the Corrupt, and Countering the Corrupt.