SA court ruling could undermine Public Protector

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South Africa’s top court ruled an anti-corruption official who accused President Cyril Ramaphosa of serious misconduct acted in bad faith when investigating an apartheid-era bank bailout.

The strongly worded ruling could undermine the credibility of Public Protector Busisiwe Mkhwebane as she prepares for court cases brought by Ramaphosa and Public Enterprises Minister Pravin Gordhan, a key ally of the president.

“This court upholds the High Court’s finding that the public protector acted in bad faith,” the Constitutional Court said.

It confirmed a punitive costs order made against Mkhwebane by the High Court last year for using flawed methods in a 2017 investigation.

The South African Reserve Bank (SARB) successfully challenged a recommendation she made then that its mandate should be changed as part of remedial action and sought Mkhwebane personally pay part of the legal costs.

“This court accordingly concludes the punitive aspect of the cost order against the Public Protector must stand,” the Constitutional Court said in Monday’s ruling.

Mkhwebane’s “entire model of investigation was flawed and she was not honest about her engagements during the investigation”, it added.

Mkhwebane said it was not clear how the Public Protector’s office would be able to do its work “without fear, favour or prejudice” as required by the constitution, given the ruling.

“This will set a precedent for other public protectors,” she said, adding she would study the judgment before making more detailed comment.

ZUMA PROXY?

Supporters of Ramaphosa accuse Mkhwebane of being a proxy for a faction of the governing African National Congress (ANC) party aligned with former president Jacob Zuma, which she denies.

Zuma, forced to step down early last year and replaced by Ramaphosa, appointed Mkhwebane for a non-renewable seven-year term in 2016 after previous Public Protector Thuli Madonsela vacated her post. She can only be removed by Parliament.

Mkhwebane has been involved in several acrimonious disputes.

On Sunday, Ramaphosa said he would urgently challenge Mkhwebane’s “flawed” finding in a separate investigation he “deliberately misled” parliament over a 2017 donation to his campaign for ANC leadership.

Mkhwebane, who began the investigation after a complaint from South Africa’s opposition, recommended Ramaphosa be referred to parliament for violating an executive ethics code with regard to the donation.

The saga is a headache for Ramaphosa, who staked his reputation on cleaning up corruption and reviving Africa’s most developed economy, providing ammunition for enemies including Zuma loyalists in the ANC.

Another of Mkhwebane’s recent investigations found Gordhan violated the Constitution by exceeding his powers while serving as national tax commissioner.

Gordhan disputes her findings and applied to the courts to have them set aside.

Previously South Africa’s finance minister, Gordhan currently oversees efforts to revive struggling state companies including power firm Eskom and weapons manufacturer Denel.

The main opposition Democratic Alliance (DA) said Mkhwebane is unfit to hold office and wants parliament to remove her from her post.

The speaker of the lower house of parliament will refer the DA request to initiate removal proceedings against Mkhwebane to the parliamentary committee on justice and correctional services for consideration.

It is not clear how the ANC, with a parliamentary majority, would vote on the issue. Mkhwebane counts radical leftist party the Economic Freedom Fighters (EFF) among her supporters.

The EFF urged Ramaphosa to take leave of absence while Mkhwebane’s investigation into him was reviewed.