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There are increasing calls for the dismissal of South Africa’s public sector corruption watchdog following a string of high-profile court defeats that have raised concerns about her competence and neutrality.
Public protector Busisiwe Mkhwebane has suffered a torrid time in the country's courts this year, becoming embroiled in damaging legal battles with president Cyril Ramaphosa, his government allies and private companies, after issuing a series of controversial reports.
The next round in the courtroom jousts between the prosecutor and Ramaphosa is set for hearing on Monday.
Judges have been scathing in their reviews of some of Mkhwebane’s findings and a cross-section of players from political and civil society are questioning her motives, allegiances and credibility.
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For instance, in May the North Gauteng high court set aside her report on alleged corruption in a rural black economic empowerment scheme in the Free State Province, which involved the controversial Gupta business family and ruling party allies of former president Jacob Zuma.
The court ruled that Mkhwebane had failed to investigate properly the complaints made around the Vrede dairy project, as senior African National Congress (ANC) officials implicated in the scandal who support Zuma had not been interviewed.
At the end of July the constitutional court also ruled that Mkhwebane had put forward “falsehoods” in an apartheid-era banking investigation involving Absa Bank that she released in 2018, which judges described as “flawed” and conducted in “bad faith”.
South Africa’s apex court ordered that she personally pay 15 per cent of the legal costs of the review application that set aside her findings, which has been estimated at 900,000 rand (€55,000).
Mkhwebane's legal fights with reformists Ramaphosa and public enterprise minister Pravin Gordhan – she accuses both of corruption and fraud – are proving the most damaging for her and South Africa, which is seeking to clean up its image to attract investment.
After investigating Ramaphosa’s 2017 election campaign to become the ANC’s next president, Mkhwebane found he had violated the constitution and misled parliament in relation to a 500,000-rand (€31,000) donation he received.
‘Factual inaccuracies’
Ramaphosa has taken her report into his campaign finances on urgent judicial review, saying Mkhwebane’s findings contain “numerous factual inaccuracies of a material nature” and were “fundamentally flawed”. The case is scheduled for hearing on Monday.
On July 28th the North Gauteng high court also granted Gordhan an interim interdict to suspend an order made by Mkhwebane that he be disciplined by the president over his work at the South African Revenue Service, while he takes her findings on judicial review.
In her report Mkhwebane accuses the former finance minister of illegally establishing a “rogue unit” at the revenue services that conducted illegal intelligence gathering operations.
"Much of the orders are vague, contradictory and/or nonsensical," said judge Sulet Potterill.
Mkhwebane’s alleged failure to properly investigate cases involving Zuma’s allies, and her determination to pursue ones related to Ramaphosa and Gordhan, has led to accusations she is trying to undermine their efforts to clean up government.
However, Mkhwebane denies she has become partisan, but rather maintains she is pursuing cases without fear or favour. She also insists she is being attacked because she is holding powerful politicians to account.
Parliament has confirmed it will discuss the merits of probing Mkhwebane’s fitness to hold office in early September, after the Democratic Alliance party requested an inquiry into her troubled tenure last month.
In addition, trade union federation Cosatu and the South African Communist Party have called for all the investigations she has finalised since taking office in 2016 to be set aside until her competency and trustworthiness have been established.
University of Johannesburg politics professor Mcebisi Ndletyana said so far there was “no smoking gun” that could prove the corruption ombudsman was part of a conspiracy to undermine Ramaphosa.
However, he maintained there was evidence to suggest “she has been biased in the investigations she has decided to pursue”, and that she intended to smear “Ramaphosa’s presidency”.
According to South Africa’s constitution, the public protector can be fired only if they are found guilty of “misbehaviour, incapacity or incompetence”.
If the parliamentary committee appointed to determine this finds Mkhwebane is unfit to hold office, a vote of no confidence can be tabled in the 400-seat National Assembly. A two-thirds majority would be needed in the vote before she could be removed.
However, Mkhwebane hit back last Sunday, saying the court defeats she had suffered so far were not sufficient grounds for parliament to remove her, as she enjoyed the same immunity from the lower house interference as judges.