NATHANIEL LEE | Mkhwebane may have qualified but was incompetent as public protector

In South African terms, no one personifies the disjuncture between qualifications and competence more than embattled public protector Busisiwe Mkhwebane. While a qualification refers to a pass of an examination or completion of a course, which confers status as a recognised practitioner of a profession, competence is concerned more with the actual ability to do something successfully or efficiently.

What is dangerous for the public is the assumption of proficiency from qualified people such as Mkhwebane. The reality is that qualifications do not immediately make people competent. It must be said that while qualifications and training are imperative as the input, bringing understanding and even insight of the subject matter, little regard is given to the output, which is the evidence that is produced by demonstrating proficiency in a given role or discipline.

It would be reasonable to expect the office of the public protector to have been discriminate in appointing someone to occupy such an office prone to litigation with potential lawsuits and liability. With Mkhwebane at the helm, this office finds itself in disarray with her non-renewable contract about to end in October. Her tenure has surely been a nightmarish experience, hitting taxpayers the most with her unending litigation.

I guess most right-thinking South Africans cannot wait to see the back of her. What sticks in the craw though is how on earth was she allowed to wreak so much damage for seven years without being stopped? An advocate by profession, Mkhwebane has brought more harm than protection to the South African public since assuming office in 2016.

Her tenure has been a litany of embarrassing judgments, which have led to questions about her general competence as a qualified professional. She has had many of her findings overturned by the courts including the apex court with several cost orders served against her.

Judges have lamented, among others, the quality of her reasoning and her blatant disregard for the law. She was found to have acted outside the scope of her jurisdiction in her finding against President Cyril Ramaphosa in the CR17 funding probe.

The judges further stated that her investigation into the matter was “unlawful, irrational and reckless”, also adding that she failed to understand her jurisdiction and failed to correctly apply the law and assess evidence before her.

Since her assumption of office, she has worked tirelessly to undo the good work and legacy of her predecessor, Thuli Madonsela, who had bestowed credibility to the Chapter 9 institution following the not-so-impressive tenures of her predecessors.

Some of the unflattering adjectives to have been used in slating a majority of her findings include “vague”, "contradictory” and/or “nonsensical”. She was also found to have lied under oath, which is a criminal offence, and to have acted in bad faith. Her 2017 finding where she drafted changes to the constitution to nationalise and remove the independence of the Reserve Bank was overturned by the Constitutional Court as violating the principle of separation of powers.

Certainly, Mkhwebane has not covered herself in glory since assuming office and certainly does not do honour to the institution/s where she received her qualifications. Currently, the public protector is involved in a section 194 inquiry that seeks to determine her fitness to hold office.

The office has already spent R30m of taxpayers’ money on legal fees for her impeachment inquiry,  which has been on hold due to the funding impasse. Her office told the portfolio committee on justice and correctional services that the office will use surplus funds of about R4m to pay Mkhwebane’s legal fees.

In April, she threatened litigation unless her testimony was postponed until funds were found to cover her legal fees. As if confirming the damage Mkhwebane had wrought to the office and the liability she has become, acting public protector Kholeka Gcaleka told the committee that some of the office operations had stagnated because her defence had really taken the office off budget.

The lesson to be learnt from the Mkhwebane horrible experiment is that qualifications do not prove competence and that much tighter scrutiny must be applied in the selection of candidates to this important office. Failure to do this can lead to the demise of this office, not to mention the monetary implications.

What is certain is that history will judge Mkhwebane harshly for her uninspiring and woeful tenure as SA’s public protector.