Busisiwe Mkhwebane

A number of notable controversies and related judicial judgments against the Public Protector occurred during Mkhwebane's tenure. Political parties the Democratic Alliance and the Congress of the People have called for Mkhwebane to be removed as Public Protector whilst civil society organisations such as COSATU and the Organisation Undoing Tax Abuse have call for her fitness to hold office be reviewed.[11]

Mkhwebane's report into the alleged improper acceptance of a R500,000 donation to the successful ANC presidential election campaign of President Cyril Ramaphosa from BOSASA has been controversial for its findings, the supposed nature of the investigation, and the political context in which it was written.[12] The findings of the report, that Ramaphosa deliberately misled parliament over the donation, was described by the president as containing "numerous factual inaccuracies of a material nature, the findings that are found are wrong in law, are irrational and in some instances, exceed the scope of the powers of the public protector."[13][14] Ramaphosa sought a judicial review of Public Protector's report,[14][15] the court judged that the report should be set aside[16] and that her office had no jurisdiction to investigate the matter.[17] The court also stated that Mkhwebane's investigation was "unlawful," "irrational"[18] and "reckless"[19] whilst stating that "Mkhwebane failed to understand her jurisdiction and failed to correctly apply the law and assess the evidence before her."[20]

In June 2017, with consultation from former South African Reserve Bank (SARB) director (2003-2012), Stephen Goodson, and without consultation with government economists or legal scholars, Mkhwebane drafted changes to the Constitution to nationalize and remove the independence of the SARB and the bank's mandate to keep inflation under control; she then ordered Parliament to make those changes in the Constitution.[21] The resultant loss of confidence in South Africa's governmental bonds caused the loss of millions of rand.[22] In August 2017 the Reserve Bank won its lawsuit against Mkhwebane and vacated her order as violative of separation of powers, which Mkhwebane appealed.[23]

In 2017 Mkhwebane issued a report, the Bankorp-CIEX report, on her investigation into among others, Absa Bank.[21] The Pretoria High Court set aside her order for Absa Bank to refund R1.125-billion to the government for the financial assistance bailout that its predecessor Bankorp Group had received from the former government.[24] The court found that "The public protector did not conduct herself in a manner which would be expected from a person occupying the office of the public protector," it further stated: "She did not have regard thereto that her office requires her to be objective, honest and to deal with matters according to the law and that a higher standard is expected of her."[25]

The court also found that Mkhwebane had lied under oath and had acted in bad faith in her investigation.[26] The court assessed some costs of the case personally against Mkhwebane due to her conduct.[27][28] The personal costs order was later upheld by the Constitutional Court of South Africa in July 2019[29][30][31] amounting to an estimated R900,000.[32] The court's judgment increased public calls to have Mkhwebane removed from office.[33]

In May 2019, Mkhwebane's report into the Vrede Dairy Project was declared unconstitutional and set aside, with the Gauteng High Court finding that the Public Protector had failed in her duties to investigate the project.[34] The Public Protector's office was ordered to pay the costs of the challenge, with some of the costs awarded against Mkhwebane personally.[35]

As public protector Mkhwabane's office released a report stating that former Minister of Finance Pravin Gordhan was guilty of "violating the constitution" due to alleged improper conduct regarding the early-retirement payout of a South African Revenue Service (SARS) official.[36] This resulted in Mkhwabane recommending that Presidency a take disciplinary action against Gordhan.[36] Gordhan's legal counsel challenged the Mkhwanbane's finding,[36] Mkhwabane publicly and preemptively denied that it was part of a larger political struggle to target and discredit Gordhan.[37][38][39] In July 2019 the Gauteng Division of the High Court of South Africa ruled that Mkhwebane's recommendation against Gordhan be suspended, pending a judicial review of Mkhwabane's report on the SARS "rogue unit". The judgement stated that a number of Mkhwebane's assertions were "vague, contradictory and/or nonsensical".[40][41]

A number of notable judgments against the Public Protector during Mkhwebane's tenure include the following.

On 30 July 2019 the horse racing company Phumelela Gaming and Leisure won a court interdict to prevent Mkhwabane's office from implementing remedial action in the horse racing industry whilst the public protector's report on the matter was under judicial review.[42][43] The company argued that Mkhwebane's office violated the separation of powers, did not follow a fair process when investigating Phumelela's case and had a large number of both factual and legal material errors.[42][43] This judgement closely following the Constitutional Court (in the ABSA Bank/SARB case) and the Gauteng High Court (regarding Pravin Gordhan) judgements against Mkhwebane's office was seen in the media as further weakening her position as public protector and adding strength to calls by the Democratic Alliance and civil society to initiate a parliamentary review into her fitness to hold office.[44][43][42]

The High Court ruled against the Public Protector and set aside Mkhwebane's findings against individuals representing the Bapo ba Mogale community finding that methodology in compiling the report had a number of notable flaws.[45]