I have just read Daily Maverick contributor, Stephen Grootes’ analysis of Advocate Busisiwe Mkhwebane’s tenure as Public Protector – an article in which he calls her all sorts of things, including a criminal or at least a servant of criminals. I must say Stephen has a comical way of providing analysis.
Going through the piece, my mind couldn’t help but race back to the disastrous event that was the launch of his book, SA Politics Unspun, some six years ago at Primedia offices in Sandton.
I’m sure, to this day, Stephen rues the day he invited Mac Maharaj, the onetime spokesperson of former President, Jacob Zuma, to interview him in a discussion on local politics. The dialogue was essentially his way of introducing and selling the book to potential readers.
I still cringe when I recall the look on Stephen’s face when Maharaj pointed out to him in front of a capacity audience how poorly-researched and riddled with errors and factual inaccuracies the book was.
Red-faced, he swallowed hard Maharaj’s no-holds-barred criticism, going as far as to undertake to remove from later editions of the book the pieces of misinformation the struggle veteran revealed to him and his stunned audience.
Incidentally, I remember reading somewhere that the book was meant to provide millennials and first-time voters with the A-to-Z of domestic politics ahead of the 2014 national polls. Given how the launch turned out, you have to wonder if the book eventually realised this objective.
Anyhow, I just wanted to let Stephen know that every time I read or listen to his attempts to critique others, I get flashbacks of that awkward encounter with Maharaj. That is exactly what happened this week when I perused the article headlined “How to ruin a Chapter Nine institution in 28 months”.
To borrow from Maharaj, facts are important. Accordingly, let’s start there.
Consistent with the basis for the inaccuracies in his book, Stephen seems to parrot all that is said by Adv. Mkhwebane’s detractors without bothering to verify the information.
For starters, he desperately tries to create an impression that to have a court rule against a Public Protector report as seen in the ABSA/CIEX matter is a new phenomenon and implies incompetence.
I do not like drawing parallels between Adv. Mkhwebane and her predecessors and vice versa but because he uses this comparison to concoct a desperate argument, I will reluctantly play along.
Having spent the last 10 years of my career as a communications aide for three heads of this constitutional institution, including Adv. Mkhwebane, I can say without fear of contradiction that yet again Stephen got it wrong.
The courts have come out with scathing judgments on the reports of at least two other Public Protectors. I know checking facts is not his cup of tea but I beg him to do himself a favour just this once and take a look at the Oilgate matter in respect of Adv. Lawrence Mushwana and the National Empowerment Fund case with regard to Adv. Thuli Madonsela.
Like the treasure trove that is the Padraig O’Malley website where Stephen could have gone to verify the false information he published in his book, information pertaining to these two cases is easily accessible online.
He also suggests strangely that the Public Protector, who, with the benefit of hindsight, acknowledged that her remedial action in the ABSA/CIEX matter could have been phrased differently and thus decided to not oppose court action against it and to abide by the court decision was doing something wrong.
Perhaps it would have pleased him if she went ahead to defend what she already accepted did not carry the spirit of what she had intended to communicate. For the record, Adv. Mkhwebane has said on many occasions that her focus was merely on how the marginalised could benefit from the central bank. What is more, the court never even dealt with the issue of the illegal transaction, which no less than two judges, Dennis Davis and Willem Heath, confirmed.
Then there is the problematic notion that to have a Public Protector err proves incompetence and warrants removal from office. This is very strange in a country where court judgements get overturned and set aside all the time on the grounds that wrong legal principles were applied.
Let’s take the infamous Oscar Pistorius case. High Court Judge Thokozile Masipa found Pistorius guilty of culpable homicide for shooting and killing his girlfriend, Reeva Steenkamp and reckless endangerment related to the discharging of a firearm in a restaurant.
She sentenced him to a maximum of five years imprisonment for culpable homicide and a concurrent three years prison term for the reckless endangerment conviction.
The Prosecuting Authority appealed the culpable homicide verdict and the related sentence, and went on to win the case, with the Supreme Court of Appeal (SCA) overturning the culpable homicide conviction and instead finding Pistorius guilty of murder. This was accompanied by a heftier jail term by Judge Masipa.
The SCA had held that Masipa had erred and wrongfully applied the dolus eventualis principle. It was accepted that Masipa indeed made an error in law and that was as far is it went and meant to be.
It would have been inconceivable for anyone at the time to even consider words and statements such as “incompetence” and “removal from the bench”. The reason for this is simple. To err in law does not equal inability. It is thus suspect as to why anyone thinks it is okay in the instance of the Public Protector to casually play around with such words.
Stephen goes on to suggest that the apparent refusal by some organs of state to heed the call of Adv. Mkhwebane that they should right their wrongs, prompting her to “name and shame” the offenders, is a result of loss of confidence in her and he implicitly condones this conduct.
He suggests that these organs of state do so because they do not respect nor fear her, they know their behaviour will attract no consequence and that no one will come to her defence if they rebelled against her.
Again the internet is awash with information to the contrary. Unimportant as it appears to Stephen to do basic research before banging on about whoever he thinks less of, he will do well to study Adv. Madonsela’s speeches and annual reports to find this information.
In fact, we have the famous Nkandla judgment today precisely because of the pre-2016 view that the Public Protector was not a court of law and thus made no binding remedial action but mere recommendations which could be ignored at will.
At the time, some public office-bearers and officialdom alike not only looked the other way when the Public Protector spoke, they also held press conferences and took to podiums where they had unkind things to say about this office. The last two weeks’ events suggest the return of this culture.
Stephen must know that to ignore, willy-nilly, a legitimate institution’s legal directives merely because of the feelings you harbour against its head is an onslaught on the rule of law and our constitutional democracy.
Take further note, dear editor, that some of the 38 reports in which implicated parties have not implemented remedial action, were issued by Adv. Madonsela. One such case is the Vhembe Concerned Pensioners Group matter.
They approached Adv. Mushwana in 2008 and Adv. Madonsela issued a report, ruling in their favour in 2011. But, loath to double-check facts, Stephen wouldn’t know this. Would he?
For his information, the whole “name and shame” idea was a last ditch attempt to prompt organs of state to do the right thing. Adv. Mkhwebane could have gone to court to seek an order to compel the offenders to implement the remedial action or at least have it reviewed and set aside but her office has shallow pockets.
She can’t even afford to defend all 21 of the more than 70 investigation reports she has issued since assuming duty in October 2016, which have been taken on review. Much as it is difficult for Stephen to believe this, it is fact. Adv. Mkhwebane’s Legal Services budget for the year ending this month was R4million and, not surprisingly, the office is currently way over budget even though we have managed to recoup at least R1.9million in costs from the review cases we won.
Adv. Mkhwebane now finds herself having to pick and choose which reports to defend and which to choose to abide by the court’s decision. This is not because she fears losing the cases as Stephen suggests without a shred of evidence. Her office just does not have the money. Again, refer to successive annual reports.
As for the criteria, she opts to defend matters that will likely have a fundamental impact on the ability of the office to do its work.
By the way, the decision by aggrieved parties to take the Public Protector’s reports on review is not an indictment on Adv. Mkhwebane. The implicated parties are merely exercising their rights. This is similar to appealing an unfavourable court judgment.
Moreover, challenging the Public Protector’s reports in court has always happened for as long as this office has existed.
But here is what irks me the most, dear editor. In the 28 months that Stephen suggests she has “ruined” this office, well over 30 000 complaints have passed through Adv. Mkhwebane’s hands. Out of that total, she disposed of more than 24 000, around half of which were in favour of the complainants.
Stephen and his ilk single out only two cases, being ABSA/CIEX and Vrede (whose investigation was already put to bed with Adv. Mkhwebane stepped into office and only now is the role of politicians being probed following a request by MPs) and ignore the remaining 23 998. If his piece was really the “analysis” it professes to be, it could have made this concession.
Fortunately, the grassroots whose dignity Adv. Mkhwebane goes out of her way to restore in line with her Vision 2023 would never share his elitist views. This is because she has made a difference in their lives and continues to do so.
Among these is a Western Cape woman who just got paid more than R300 000 in arrears and future maintenance payments after several Maintenance Court orders for the Government Pension Administration Agency to attach a portion of the defaulting father’s pension fell on deaf ears for a period spanning more than four years.
How about the 73-year-old North West pensioner who was a tenant in a house that was rightfully hers but could not officially call it that because it took the government over a decade to transfer ownership into her name after she paid R112 000 in cash for the dwelling in 2008?
Or a group of small business people who are about to be paid a collective R12 million they are owed by the Gauteng provincial government for the low-cost houses the government contracted them to build in the late 1990s?
I could go on and on but I don’t expect Stephen to understand. With the two jobs he holds on the SABC’s radio and television platforms, it would be fair to assume he’d afford a lawyer to take on the state in the event the bureaucracy short-changed him.
For the grassroots folks I refer to above, this is but a dream. They come to the Public Protector knowing that it is a free service that makes binding decisions. It is a best shot at justice for them.
In case Stephen is thinking of distorting Adv. Mkhwebane’s deliberate decision to turn her office into a stronghold for the poor, whose complaints have always accounted for +95% of her office’s caseload anyway, he needs to be reminded how her decisions have led to the dismissal of the powerful.
These include the likes of former Ministers Lyne Brown, Des van Rooyen and Malusi Gigaba. Her interventions also uncovered widespread looting in the Mandela Funeral matter, just to mention but one matter.
Lastly, let me hasten to say that Stephen must not understand me to be suggesting that the Public Protector should be spared from scrutiny. But as he shines a spotlight on how she has fared thus far, he must try to do so fairly.
The starting point would be to do some basic research, check facts and acknowledge the truth even when it threatens to stand in the way of pre-conceived, negative conclusions.
Failure to do so will force some of us to revisit the Maharaj incident, which I take it Stephen wants to forget.
Oupa Segalwe Is Acting Spokesperson, Public Protector South Africa
* This is a response to Grootes’ article published in the Daily Maverick on Monday, March 04, 2019. The publication declined to publish the response.