Will Busi earn the public's trust?

Public protector Busisiwe Mkhwebane certainly is a new broom, but there are disconcerting indications that she does not sweep as clean as her predecessor, warns Paul Hoffman.

Media reports suggest that the new public protector, Advocate Busisiwe Mkhwebane, is wasting no time in taking on the role of a new broom sweeping clean in the office she now occupies.

Her "reforms", according to a media summary published in Legalbrief, include the discontinuation of the use of donor funds, doing away with the naming of investigation reports, cutting the use of consultants, prioritising the finalisation of cases more than two years old and placing a moratorium on international travel.

Mkhwebane reportedly said in her first week in her position as public protector that she had noted that there was low staff morale, at least in the head office.

She said some of the most pertinent problems related to performance management and the development system, and the occupation-specific dispensation, whereby junior staff members earned more than their supervisor.

Mkhwebane said the root cause of the problem was the inadequate resourcing of her office.

She added that she was uncomfortable with the use of foreign donors to assist the programmes of the office of the public protector.

Other reports indicate that Mkhwebane has, worryingly, indicated a preference for the Gupta-owned ANN7 TV news channel and is desirous of cultivating good relations with the government.

The office of the public protector is a constitutionally created independent watchdog body, an ombud with "teeth" duly empowered to make binding and enforceable rulings in relation to the appropriate remedial action required to address instances of maladministration uncovered in and reported on after the investigative work of the office is done.

By its very nature the office is not one that is ever likely, if it is properly run, to endear itself to the government it monitors.

Indeed, the whole remit of the public protector is to seek out maladministration or respond to complaints of maladministration in the affairs of state and in the public administration.

Good relations with those whose maladministration is the sole concern of the office are probably a bridge too far, unless the office compromises on the "three eyes" of independence, integrity and impartiality in its work.

The office was created, with other Chapter 9 institutions, to support and strengthen constitutional democracy, not to be best friends with the government.

Of all the previous incumbents of the office, only Advocate Thuli Madonsela has properly appreciated the importance of speaking truth to power and taking an independent course of action in the work of the office.

The manner in which the support of constitutional democracy manifests itself in the work of the office is through the protection of the public, not the fostering of good relations with the government.

Constitutional democracy is a concept that is new to South Africans, long under the yoke of parliamentary sovereignty as passive subjects of an oppressive regime rather than active participants as citizens in an open, accountable and responsive new order.

Will the Gogo Dlaminis, so beloved of Madonsela, still bring their troubles to the public protector when they learn that the new incumbent is desirous of cultivating "good relations" with the government?

Will they have confidence in the independence of the office when, in the absence of fealty to the constitutional values applicable, there is not a constant tension between the government and the protection of the public?

Just as there is healthy tension between the executive and the judiciary in any order which adheres to the doctrine of the separation of powers and the enforcement of checks and balances on the exercise of power in a multiparty system under the rule of law, a similar tension - for which Madonsela was famous and was eventually congratulated by the ANC - should be permanently in place between the public protector's office and the government.

Mkhwebane should reconsider her desire to have "good relations" with the government and re-examine the inwardness of her role in our constitutional dispensation.

She has been banging on about her perception that there is a need for "good relations" since her parliamentary interview.

If she can get her head around the notion of acting without fear, favour or prejudice, she will recognise that getting all cosy with the government is the last thing she should be doing.

The allergy to foreign or non-government-sourced funding is paranoid.

The Constitutional Court Trust has long accepted donations from all and sundry to improve the effectiveness and efficiency of the court. It, too, is constitutionally enjoined to act without fear, favour or prejudice.

Mkhwebane should either explain why her office's position is any different to that of the court, or launch her own investigation into the Constitutional Court Trust.

Dropping the use of public-friendly and catchy titles for reports is contrary to international practice and is perhaps a churlish way of distinguishing the new leadership from the old.

If the content of the reports remains as excellent as in the past seven years, nothing will turn on this so-called reform other than sparing the government the embarrassment of being the butt of the joke in some titles.

Doing away with consultants could turn into an expensive and unwarranted exercise. It does happen from time to time that the advice of quantity surveyors, forensic accountants or medical specialists may be required in the course of an investigation by the office.

It is unnecessarily expensive to keep expertise of this kind on the full-time staff on the off chance that work for it materialises, hence the well-established and sensible use of consultants, some of whom, such as insurance loss adjusters, have volunteered to help in investigations on a pro bono basis.

This practice gives rise to the effective, efficient and economical use of resources in accordance with the dictates of the constitution.

The same applies to overseas travel, which may be a necessary part of an investigation.

As for Mkhwebane's comments on the morale of staff at head office: has it occurred to her that switching from eNCA to ANN7 and introducing unnecessary and ill-considered reforms in her first week in office may have something seriously deleterious to do with the esprit de corps of the personnel who have hitherto so proudly and independently served the public of South Africa without fear of the powerful, favour to the friendly or prejudice to the public weal?

Surely Mkhwebane is aware that the owners of ANN7 are under investigation by her staff for their involvement with and in the dangerously wrong-headed business of state capture?

Pretending (as Mkhwebane does) that state capture is not a priority, a problem or even an accurate description for the well-supported allegations that have been made in public by a deputy minister, a former senior ANC member of parliament and a senior civil servant, suggests that she does not have a cooking clue as to the true nature of her role in our constitutional democracy under the rule of law.

Let's all hope and pray that Mkhwebane will grow into her new job, reconsider the reforms criticised above, work off that backlog of cases quickly and serve to eliminate maladministration from the affairs of state and the public administration, as the constitution requires of her in clear and unambiguous language.

The success of our constitutional project is in part dependent on the success of the office of the public protector in the lawful discharge of its mandate.

It is not a position for deployed cadres of the national democratic revolution who feel accountable to their party and not the constitution.

Hoffman SC is a director of Accountability Now and the author of the recently published book "Confronting the Corrupt"