It is not raining, but pouring on Public Protector Busisiwe Mkhwebane.

For some odd reason, the Public Protector appears to have been in a hurry to make decisions against Minister Pravin Gordhan and President Cyril Ramaphosa in two separate matters, one involving an investigative unit within the South African Revenue Service (SARS) and the other involving a donation by Bosasa to President Ramaphosa’s campaign for the ANC presidency in 2017. Both Minister Gordhan and President Ramaphosa have indicated that they are referring the reports to the courts to request them to review the findings and to suspend the implementation of the remedial actions suggested by the Public Protector pending the outcome of the review proceedings, both of them claiming irrationality on the part of the Public Protector for their applications for review. The allegations of irrationality are very serious allegations against the Public Protector as they come at a time when there are those who are calling for parliament to inquire into her ability to hold office.

Public Protectoe Busisiwe Mkhwebane during a Court hearing

In the matter against Minister Gordhan, the High Court on monday, 29 July 2019, found in favour of Minister Gordhan and suspended the remedial action recommended by the Public Protector. The case involving President Cyril Ramaphosa was postponed by the High Court on tuesday 30 July 2019 as no judge was allocated to hear the matter. In that case the public Protector had recommended that the Speaker of the National Assembly should drag the President before the parliamentary Ethics Committee and conduct an inquiry on the grounds that the President had deliberately misled parliament when he answered a question relating to the R500 000.00 payment to his son, Andile, by Mr Gavin Watson of Bosasa. The President had said that the payment was in relation to a financial consultancy to Andile Ramaphosa by Bosasa, but later changed that statement and said that the amount was a donation for his election campaign in 2017.

In the meantime, on 22 July 2019, the Constitutional Court had dismissed an appeal by the Public Protector against a decision of the High Court, Pretoria, in a matter involving the Reserve Bank. In that matter, the High Court had ordered the Public Protector to pay 15% of legal costs on a punitive attorney and client scale including the costs of three counsel, incurred by the Reserve Bank, again in taking her report on review. The costs amounted to approximately R900 000.00 and she had to pay the 15% out of her own pocket. The majority judgement found that personal costs orders are not granted against public officials who conduct themselves properly but against those who have shown themselves to have acted in bad faith. In the meantime, the EFF had been very supportive of the Public Protector throughout, especially so in the case involving Minister Gordhan. It is not clear why the Public Protector continues to release the nature of reports that she does and why the Courts continue to find that she acts in bad faith and makes falsehoods in affidavits before the courts.

Meanwhile, the Dep Public Protector, Adv Kevin Malunga, has distanced himself from Mkhwebane’s ABSA-Bankorp report, alleging that he was not consulted when that report was made. The SACP has claimed that Busisiwe Mkhwebane is a hired gun. Can this explain her conduct in the recent past? Only time will tell.

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