The political motivations behind some of the Public Protector’s controversial findings seem clear. These should not be seen as failures for Mkhwebane as legal success has seemingly never been high on her list of priorities, writes Hermann Pretorius.
South Africans should not make the mistake of
thinking that Advocate Busisiwe Mkhwebane is incompetent. She has yet to
display substantive legal competence in discharging her duties, appropriate
knowledge of the Constitution, or an understanding of what her office as Public
Protector requires – but she is nevertheless highly skilled and effective in
The mistake many South Africans seem to be
making is that her role is that of Public Protector. That might be her office,
but it is not her “role”.
The warnings were visible early on.
Particularly illuminating during her appointment process was her belief that
Chapter 9 institutions were supposed to “assist” the state. This is constitutionally
incorrect, as the Chapter 9 institutions are supposed to strengthen our
democracy, often by providing additional checks and balances on executive
Moreover, when Mkhwebane spoke thus of the “state”,
she could not possibly have meant the South African state in general. Her
behaviour since assuming office suggests she must have meant the then head of state,
The political motivations behind some of her
controversial investigations and findings (as recently criticised by the Constitutional
Court) seem clear. These professional miscarriages should not be seen as
failures for Mkhwebane – legal success has seemingly never been high on her
list of priorities.
A political motivation also seems to lie behind
her current hounding of Public Enterprises Minister Pravin Gordhan. He may
rightly be criticised for having allowed public debt to balloon from 30% of GDP
in 2009 to 53% of GDP in 2017, but he has repeatedly been cleared of any
wrongdoing in relation to the alleged SARS “rogue unit”. That Mkhwebane
is so determinedly pursuing him over this matter suggests she has an overtly
Recently, the Public Protector seems to have
identified another target for reputational attack: the current SARS commissioner,
Edward Kieswetter. He was appointed by President Cyril Ramaphosa to head the
revenue service after the removal of former SARS commissioner Tom Moyane,
against whom much damaging evidence had been assembled by the Nugent commission.
In 2018, the head of this commission, Judge
Robert Nugent advised the president to remove Moyane from his post. This was a
blow for the looters and state capturers who were seeking to protect their
interests by capturing the imports and exports control system. This may help
explain Mkhwebane’s recent announcement that she is now investigating alleged
procedural irregularities in Kieswetter’s appointment.
This investigation, launched in response to
anonymous complaints, looks like yet another play for factional gain which has
no legal substance. It is hard to see how any procedural irregularities could
have attended the appointment of Kieswetter when no specific procedure for
such an appointment exists in law.
The president has almost unlimited discretion in
appointing the SARS commissioner – though any such decision must of course be
rational, as required by the Promotion of Administrative Justice Act (PAJA) and
further explained by the Constitutional Court in the Simelane case. But
Ramaphosa did indeed act rationally when he made the appointment. He also took
care to follow the recommendations of the Nugent commission.
Recommendation 16.3.2 of the Nugent report sets
out the requirements identified by Judge Nugent for the position of SARS
commissioner. The person appointed should be, and should be reputed to be, of
unblemished integrity. He or she should also have proven experience of managing
a large organisation at a high level, and should not be aligned to any
constituency (or should renounce any such allegiance upon appointment).
The finance minister’s report to the president
on the appointment of a new SARS commissioner, dated March 21, 2019, sets out
in detail how these recommendations were followed in providing three names to
the president for his discretionary appointment. From this list, Ramaphosa selected
Kieswetter. This confirms the rationality of the appointment and leaves no
legal basis on which the Public Protector can claim that the president’s
decision fell short of PAJA standards.
Effectively, the Public Protector has no substantive
grounds on which to build a bona fide
legal case against Ramaphosa’s appointment of the incumbent SARS commissioner. Kieswetter
is suitably qualified for his post, while the process followed was transparent
and rational. It should also help restore the institutional integrity of SARS,
along with the capacity that was lost under Moyane’s tenure.
That Mkhwebane is nevertheless investigating
his appointment shows not that she is incompetent in her role, but rather that
she has little interest in the proper discharge of the duties of her office.
Put differently, her “real” role is not the one demanded by the office
she holds. Instead, she seems intent on creating political mischief and fanning
distrust in those individuals with the capacity to thwart the continuation of
state capture. And in this role, her competence is something to behold.
Pretorius is an analyst at the Institute of Race Relations (IRR), a
liberal think tank that promotes political and economic freedom.
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