NEWS
12/06/2018 11:32 SAST | Updated 12/06/2018 11:32 SAST

8 Times Busisiwe Mkhwebane Made Us Go 'Hayibo!'

The Public Protector has been dogged by a series of odd decisions and controversial reports. These are some of the dodgier moments.

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Public Protector Advocate Busisiwe Mkhwebane.
  1. Helen Zille's tweets.

The report she released on Monday will undoubtedly go down in the history books as one of her most controversial. In her report, Mkhwebane held that Zille had breached the Executive Members Ethics Code, when she tweeted in 2017: "For those claiming that the legacy of colonialism was only negative, they should look at various aspects of South Africa's development, such as the judiciary and other infrastructure," according to Eyewitness News (EWN).

One of the many critics of her report, constitutional law expert Professor Pierre de Vos, wrote that the report was "a legal nonsense" that was "so legally misguided that it is difficult to believe that a qualified lawyer wrote it in good faith". One of the many legal flaws in her report, wrote De Vos, is that in making her finding, Mkhwebane held that Zille had breached the section of the Bill of Rights that deals with speech not protected by the Constitution. This would be speech that could, for example, stir up racial violence.

But the Public Protector is not empowered to investigate alleged infringements on the Bill of Rights, De Vos wrote. Zille has indicated that she will take the report on judicial review.

  1. Madonsela and the leaks.

Early on in her term, Mkhwebane opened a case requesting an investigation into the alleged leaking of recorded interviews between former public protector Thuli Madonsela and former president Jacob Zuma. The interviews took place in relation to the "State of Capture" investigation. While the case was not specifically about Madonsela, many believed it was a swipe at her, as she had made the transcripts of the interviews public, after Zuma denied that he was given an opportunity to comment on that report.

  1. Vytjie Mentor

Mkhwebane claimed former ANC MP Vytjie Mentor was one of the complainants in the "leaking" of the audio tapes. But Mentor vehemently denied this. "How can an advocate lie like this?" she asked.

  1. Chief of staff

A string of high profile resignations culminated in the firing of the chief of staff in the office of the public protector, who was marched out of the office by security, allegedly because he was a security threat. It seemed as if Mkhwebane was purging Madonsela's team, as Madonsela's personal assistant and a senior investigator on the "State of Capture" report were redeployed. Speaking to HuffPostSA, the chief of staff said, "I was told she doesn't need the team working with Madonsela in the private office."

  1. Cases under review

One year into her term, Council for the Advancement of the South African Constitution (Casac) executive secretary Lawson Naidoo said there were some good signs, for example, that Mkhwebane had managed to cut costs by cutting down on the number of consultants used by her office. But at that point, five of her decisions were under judicial review, raising questions about the quality of her reports, he said.

  1. Absa

In 2017, in one of her first major investigations, Mkhwebane released the outcome of an investigation into whether Absa bank had benefitted illegally from an apartheid-era bailout given by the Reserve Bank to one of the bank's predecessors. She found that Absa did, and recommended that Absa should pay back the money. She also recommended that the Reserve Bank should change its mandate.

The decision was criticised by many experts, pointing out that Mkhwebane did not have the authority to tell the Reserve Bank to do this. In subsequent court action, Mkhwebane decided not to oppose the Reserve Bank's court application to review her report. She later said she learnt "valuable lessons" in that case.

  1. Estina

Her investigation into the Vrede dairy farm scandal is one of her most controversial yet. She was asked to investigate a scam in which black emerging farmers were promised support and cattle in Free State. But these never materialised, and much was reportedly syphoned off to offshore accounts owned by the Gupta family and associates. The PP's report cleared high-profile politicians involved in the scandal. Casac is taking the report on review, claiming that Mkhwebane watered it down.

  1. Is she a spy?

One of her greatest problems has been the concern over a previous stint she did working for the State Security Agency (SSA). The DA raised concerns about this during her interview, but Mkhwebane has denied that she was ever a spy. She also met with the SSA during her investigation into the Absa lifeboat.

But the concerns about her closeness with the SSA were raised again in April 2018, when Mkhwebane told the justice and constitutional development portfolio committee in Parliament that the SSA was heavily involved with her office. She said the SSA was helping her by providing "additional capacity", although the extent of the agency's involvement was not clear. Concerns were raised about the protection of whistle-blowers, but Mkhwebane insisted all was above board, and said Treasury had approved the agency's involvement.