The public needs better protection

12 July 2017 - 08:05 By Sabelo Ndlangisa
Busisiwe Mkhwebane. File photo.
Busisiwe Mkhwebane. File photo.
Image: Gallo Images / Beeld / Deaan Vivier

Public Protector Busisiwe Mkhwebane must have learnt her first important lesson since she took office in November last year - that holding office doesn't give one carte blanche to do as one pleases.

It's common sense to expect the findings and instructions of the head of a Chapter Nine institution to be legally sound, especially from the head of a body such as the Public Protector, which has become so central in combating the flagrant abuse of public power we have witnessed under President Jacob Zuma's scandal-prone administration.

Mkhwebane has made a number of questionable moves and statements since she took over from her revered predecessor Thuli Madonsela. But her worst decision in her short tenure has to be her instruction to parliament to change the constitution to tinker with the mandate and the independence of the SA Reserve Bank.

Let's recap. A few weeks ago Mkhwebane found against Absa/Bankcorp in a case involving the bank's liability for the repayment of the R1.1-billion lifeboat the Reserve Bank extended to it between the late 1980s and the early 1990s.

Although the facts about whether Absa will have to pay in full are still in dispute, what was bizarre about Mkhwebane's report was her instruction that parliament should change the wording of Section 224 (1&2) of the constitution. She even gave MPs the exact words they should substitute for the ones used by the crafters of our supreme law, a construction critics say would have taken away the independence of the bank.

The bank, the Treasury and parliament are united in opposing her findings.

On Monday Mkhwebane announced she would not oppose the bank's decision to take her remedial action on review. Her back-pedalling confirms what many people have always suspected - she has overstepped her authority.

Nothing in the constitution, the Public Protector Act or in case law gives her the powers to instruct legislators to change our supreme law. Not even the courts have done that in the past 23 years. She had previously indicated she would state her case in court when her findings are challenged.

It must be embarrassing then for her to admit that her lawyer advised her not to challenge the review of her first major report. Her legal advice was that she had no legal leg to stand on from the onset.

Many people have been questioning her intentions since she took office amid unconfirmed allegations that she has a cosy relationship with the executive - the very people the institution she heads was created to keep an eye on.

Even more worryingly, her flip-flopping when asked about the basis of her instructions to parliament suggests her grasp of the law is a bit shaky for a public official at the helm of an institution mandated to support our constitutional democracy.

Noble as her sentiments about transforming the economy may have been, the remedial action she prescribed has hurt an already fragile economy.

It has also led to unnecessary litigation at the expense of the public purse.

One can only hope she has learnt her costly lesson and that she'll recover from this faux pas. But if she goes on as she is now, she might find herself out on a limb. It is possible a lobby group might use the outcome of a court case like this one - if it is scathing on her professional standing - to challenge her fitness to hold office. She might find herself joining the long list of public officials who have been forced to vacate office prematurely.

  • Ndlangisa is a journalist and former deputy editor of Drum