Busi Mkhwebane now really up against it

Yesterday's finding will certainly lend credence to the pursuit of a parliamentary inquiry into Public protector Advocate Busisiwe Mkhwebane's fitness to hold office, the writer says.
Yesterday's finding will certainly lend credence to the pursuit of a parliamentary inquiry into Public protector Advocate Busisiwe Mkhwebane's fitness to hold office, the writer says.
Image: Moeletsi Mabe

Confused, irrational and unlawful were some of the words repeatedly used by the North Gauteng High Court when setting aside public protector Busisiwe Mkhwebane's findings against President Cyril Ramaphosa yesterday.

Mkhwebane had found, among other things, that Ramaphosa had misled parliament regarding a donation by Bosasa to his ANC presidential campaign.

In what is one of the most scathing rulings against the public protector, the court wholly rejected every material aspect of her report and slapped her with a punitive cost order.

Not least of her remarkable findings was that through the Bosasa donation Ramaphosa had somehow been involved in money laundering.

The court ruled that not only had she failed to prove this claim against a sitting head of state, but that in making her finding, she had relied on a section of the law that had nothing to do with money laundering. "Her findings were not only irrational but reckless," the judgment said.

Ramaphosa aside, there are two findings by the court that ought to concern every citizen committed to the democratic project.

The first is that the court said Mkhwebane demonstrated a flawed grasp of the issues with which she was dealing. This goes to the heart of her competence to occupy one of the most crucial institutions of our democracy. This finding will certainly lend credence to the pursuit of a parliamentary inquiry into her fitness to hold office.

The second is a simple yet profound one. The court ruled that she failed to approach her investigation with an open mind.

This suggests a predetermined outcome and/or potential bias on her part. It suggests that her actions may have been driven by motivations other than the principle of accountability, fairness and adherence to the rule of law.

It is not yet clear whether Mkhwebane will appeal the judgment. Those sympathetic to her believe she should, suggesting it sets a legal precedence which may be dangerous for systems of accountability, especially when it comes to party donations.

Whether this argument would convince a higher court is yet to be seen. But as it stands, the judgment remains a crushing blow to Mkhwebane and the public trust in the office she holds.

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