From the moment Busisiwe Mkhwebane was first appointed Public Protector, there have been rumblings about both her ability and her integrity.

Gone are the days of a virtuous appointment like Thuli Madonsela, and Mkhwebane has proven time and time again that she’s not up to the task.

Earlier this week, she was handed her most humiliating defeat, with the Gauteng High Court setting aside the Public Protector’s Estina Dairy Farm Project Report.

You know, her report on the massive fraud scheme masquerading as a farm development project in the Free State, overseen by Ace Magashule, where more than R200 million meant for black farmers was funnelled to companies with close ties to the Guptas.

It’s how they paid for that Sun City wedding.

Legal eagle Pierre de Vos, writing for the Daily Maverick, points out that whilst mistakes will happen, this latest ruling should be a nail in Mkhwebane’s coffin:

…the findings against Mkhwebane contained in three different court judgments are so egregious that it has probably irrevocably tainted her credibility and has eroded public trust in her ability to act in a fair, impartial and legally informed manner to protect the public.

He recommends invoking Section 194 of the South African Constitution, which allows for the removal of the Public Protector from office, and outlines exactly how those three court judgments have shown her to be unfit for office.

The Gauteng High Court judgment in Democratic Alliance v The Public Protector showed that, despite the DA presenting the Public Protector with a list of beneficiaries of that disappearing money, Mkhwebane failed to get statements from any of them.

Second, the Public Protector placed the blame on the DA and said that they undertook to get the statements which they did not do.

This excuse is quite extraordinary as an independent constitutional body claimed that it was intending to outsource part of an investigation to a political party with a vested interest in the outcome of the case. It is akin to the National Prosecuting Authority (NPA) admitting that it was relying on the DA to obtain witness statements to be used in the prosecution of former President Jacob Zuma. As the High Court noted:30

“Leaving the duty in the hands of a political party was totally inappropriate and could potentially have impacted on the impartiality of any statement so obtained.”

Here’s where things really fall apart – she didn’t even bother to investigate the involvement of then Premier Magashule and Mosebenzi Zwane in the scam:

She claimed there was no time to investigate this matter. However, as the final report was only released in February 2018, 22 months after the complaint was lodged, the court rejected this excuse stating:

“It is inconceivable that having regard to the dates, she could seriously contend that it was too late for her proper consideration.”

Hmm – why wouldn’t she investigate those two chaps?

De Vos selected a few other standout passages from the various rulings to illustrate just how damning they are about Mkhwebane’s conduct:

“On what basis she could justifiably come to such a conclusion is unclear. It points either to ineptitude or gross negligence in the execution of her duties.”

“However, the findings of irregular expenditure in the provisional report were omitted from the final report. In light of all the facts, this omission by the PP is inexplicable. One may justifiably ask whether this was done for some ulterior purpose. Unfortunately, no explanation was given by the PP for these changes.”

“The failure of the PP to execute her constitutional duties in investigating and compiling a credible and comprehensive report points either to a blatant disregard to comply with her constitutional duties and obligations or a concerning lack of understanding of those duties and obligations.”

In short, she needs to go, with de Vos finishing by saying that “a picture emerges of a deeply troubled institution led by somebody who has huge gaps in her legal knowledge and lacks an appropriate sense of fairness and impartiality”.

One gets the feeling she really isn’t working with the public’s best interests in mind.

Naturally, after being thoroughly humbled by the rulings, Mkhwebane feigned astonishment. Here’s the Mail & Guardian:

In a statement issued on Monday evening, Mkhwebane said she was concerned about the ruling which she ‘disagrees with fundamentally’, saying that setting aside the report may be interpreted as the court letting people implicated in the report off the hook.

Mkhwebane’s spokesperson Oupa Segalwe [said] that Mkhwebane was “astonished” by the ruling…

Sure.

In the report she delivered, that has since been set aside, Mkhwebane recommended that now ANC secretary general Ace Magashule should “initiate and institute disciplinary action against all implicated officials involved in the Vrede dairy project”.

Perhaps if she had bothered to investigate Ace and Zwane themselves, we wouldn’t find ourselves in a situation where the ANC is in the middle of a mutiny.

The public’s trust has once again been broken, and she needs to go.

[sources:dailymav&mg]