Public Protector may be ‘resting’ — but still has battles to fight

“At any given time, we weather one storm after another. We are perpetually in the eye of storms. Perhaps it comes with the territory. But at what cost?”

Those were the words of Public Protector Busisiwe Mkhwebane, addressing her staff shortly before the end of 2020. The “cost” she referred to appears to have taken a physical toll: on Monday, her office announced that as of 15 January, Mkhwebane “has gone on a sabbatical leave to get some rest”. Her absence from office will last 2½ months, and sees her shoes filled by Deputy Public Protector Kholeka Gcaleka.

The break comes at a strange time, following the closure of the Public Protector’s office from 24 December 2020 to 4 January 2021. The unusual move has prompted speculation that it may be the prelude to Mkhwebane’s exit from her position — though she has said several times that she intends to finish her term of office in 2023 as scheduled.

Sabbatical or no sabbatical, however, Mkhwebane is still expected in court on Thursday to face perjury charges laid against her by Accountability Now head Paul Hoffman in August 2019.

The charges stem from the Public Protector’s conduct while investigating the Reserve Bank’s bailout of apartheid-era bank Bankorp. In November 2018, the Constitutional Court found that Mkhwebane had “put forward a number of falsehoods in the course of litigation”, and had also failed to explain why she had concealed the fact that she conducted a number of meetings with former president Jacob Zuma in the course of preparing the Bankorp report.

Hoffman told Daily Maverick: “The fact that she is taking long leave at present does not in itself excuse advocate Mkhwebane from attending the [court] hearing.”

Hoffman pointed out that Mkhwebane’s last statement on the matter was that she would appear in the Pretoria Regional Court as required. A postponement of the case is most likely, though Mkhwebane may be asked to enter a plea.

On the topic of the Public Protector’s sabbatical, Hoffman said: “It is to be hoped that the opportunity for reflection that long leave affords her will assist advocate Mkhwebane to reconsider her position, her track record and her suitability for the high office she holds.”

Mkhwebane is likely to be feeling distinctly politically exposed at the moment. She has tussled with President Cyril Ramaphosa over his campaign funding; more recently, has made an enemy of ANC Secretary-General Ace Magashule over damning findings with regards to the Vrede dairy farm project; and been smacked down by National Assembly Speaker Thandi Modise in court papers relating to Mkhwebane’s Constitutional Court bid to stop Parliament’s impeachment inquiry going ahead.

Mkhwebane’s fate is being considered by the expert panel appointed by Parliament as the first step in the impeachment process: retired Constitutional Court justice Bess Nkabinde, advocate Dumisa Ntsebeza and academic Johan de Waal. The panel was given 90 days in which to conduct its preliminary inquiry, starting from 25 November 2020.

DA chief whip Natasha Mazzone, who pushed for the parliamentary inquiry into Mkhwebane, described the Public Protector’s leave of absence as “unsurprising”.

Mazzone told Daily Maverick: “[Mkhwebane] has been dealt several crushing legal blows, which would cause extreme stress to anyone”.

Mazzone said that the fact of Mkhwebane being on leave would not have any impact on the parliamentary inquiry.

Indeed, TimesLIVE reported on Tuesday that Mkhwebane’s sabbatical was granted by speaker Modise only on the condition that she make herself available for the parliamentary process if required during her break.

“The panel may well finish their section of work [while Mkhwebane is on her break], but they are only the first section of the process, so it is unlikely that the whole process will be finished by the time her sabbatical is finished,” Mazzone said.

The panel will consider whether an inquiry into Mkhwebane should go ahead. If it decides as much, a multi-party committee would conduct the inquiry and then report back to the National Assembly. Mkhwebane’s removal would require a vote by two thirds of the MPs in the National Assembly.

It would be difficult for the Public Protector to extend her sabbatical much beyond her current leave, as the conditions of her contract specify that she may be granted leave of 3½ months for every four years’ service. Mkhwebane assumed office on 19 October 2016.

Echoing Hoffman’s suggestion, Mazzone said: “This may be a good period for the Public Protector to reflect on her fitness to hold office.” DM