South Africa’s judicial system is being abused by politicians and if this trend is not reined in, other institutions that demand accountability – like the Office of the Auditor-General – will also find themselves under attack, says Public Protector Busisiwe Mkhwebane.
Speaking at an event held by the Advancement of Black Accountants of Southern Africa at the University of Witwatersrand on Thursday night, Mkhwebane argued that the country’s courts were now taking over the role of running institutions, instead of administering justice.
The Public Protector has been taken to court numerous times by politicians unhappy with the findings of her reports, including President Cyril Ramaphosa and Public Enterprises Minister Pravin Gordhan.
Last year, Mkhwebane found that the president deliberately misled Parliament when he responded to a question about a R500 000 donation by late Bosasa CEO Gavin Watson to his 2017 ANC presidential campaign. She has also made several findings against Gordhan.
He, in turn, has been scathing about Mkhwebane’s fitness to hold office.
After Gordhan won an interdict in July 2019 to suspend the implementation of the remedial action in her so-called SARS “rogue unit” report, he said, in a legal statement, that while he had “great respect for the Office of the [Public Protector], he doubted “the competence, integrity, legal literacy and constitutional grasp of its incumbent, of her powers, duties and functions”.
On Thursday, Mkhwebane said it was concerning how the court system worked in South Africa.
“If you have any dispute, whether it’s a political dispute, a dispute on the Public Protector’s report, [and it remains to be seen] whether now the AG will also be subjected to that when people are not happy with the audit, I just take you to court.”
Mkhwebane said South African courts should purely be focusing on interpretation of the law and should not be dragged into administrative issues.
Public Protector is not captured
She also spoke about calls for her to step down, saying it was unfortunate that many people did not take time to visit the Public Protector’s website to see the work her office did and how it was changing lives.
READ | Mkhwebane’s proposed removal: Modise gives green light for new removal proceedings
Mkhwebane said her office had issued reports on individuals across the political and race spectrum, and that allegations of bias were unfounded.
She added her office had published findings against the likes of former ministers Malusi Gigaba, Des van Rooyen and Lynne Brown who reportedly belonged to a particular “faction”.
“No politician is influencing or capturing the Public Protector because we are too independent as an institution.”
Mkhwebane said her office was fair when conducting investigations and wrote to inform subjects that they were being investigated.
She added that, when her office had evidence, it asked the subjects of her investigations to respond, stating that everyone was afforded the same opportunity in this regard.
On state capture inquiry
During the discussion, Mkhwebane also weighed in on the commission of inquiry into allegations of state capture led by Deputy Chief Justice Raymond Zondo, saying was not operating as efficiently as it should.
Having only one judge presiding over the commission was problematic and had contributed to the process dragging for much longer than it should have, she said.
In what could be seen as dig against her predecessor, Thuli Madonsela who recommended that a commission of inquiry be established to investigate the extent of state capture by the Gupta family – Mkhwebane said if she was given the R50 million she had asked for to finalise that report, she would have employed more investigators and issued a binding Public Protector’s report because that was more effective than a commission.
“I will never ever have a recommendation where I say there must be a commission of inquiry. I don’t think we should have gone that route,” she said.
Mkhwebane said the commission has given people a platform to come forward and make damning allegations without providing documented evidence. She alleged that some individuals who have been named as conspirators had not been given time to reply, which she said is unfair.
“They should insist on provision of documented evidence. We should be receiving documents, saying you have signed. Not the hearsay that we hear.”
