Office of Public Protector’s integrity in the hands of its incumbents

Graphic: Timothy Alexander – Since Advocate Busisiwe Mkhwebane’s suspension, Advocate Kholeka Gcaleka has been at the helm of the Public Protector’s Office. As would be expected, she has already concluded and made public some of her reports.

By Bheki Mngomezulu

The integrity of the Office of the Public Protector is in the hands of the incumbents.

Following the controversial suspension of Advocate Busisiwe Mkhwebane by President Cyril Ramaphosa on June 9, 2022, invoking Section 194 of the Constitution, the Office of the Public Protector has become a public concern. The fact that the President issued his suspension letter just before Mkhwebane began her investigation on the Phala Phala matter dented his political image.

But while the President has been put under scrutiny by different stakeholders and individuals, the main focus recently has been on the working relations between Mkhwebane and her deputy, Advocate Kholeka Gcaleka. Some of the issues that have surfaced at the ongoing parliamentary inquiry on Mkhwebane’s fitness to remain in office until the end of her term in 2023 have contributed to people’s perceptions about her [Mkhwebane] and the office she leads.

Since Mkhwebane’s suspension, Gcaleka has been at the helm of the Public Protector’s Office. As would be expected, she has already concluded and made public some of her reports. These reports have been hailed by some as progressive while others have drilled holes in them and raised a number of questions.

Before presenting an analysis of some of these reports, it is important to note that Gcaleka surprised many when she indicated that her senior [Mkhwebane] had to carry some of her legal costs. One of the key questions arising from this decision was whether Mkhwebane litigated against herself. Secondly, the fact that the issues before court were triggered by events that took place while Mkhwebane was in office and while she was executing her mandate raised concern as to why she had to foot the bill.

Interestingly, Gcaleka did not see anything untoward about that. Even more importantly, some individuals and institutions in different parts of the country hailed Gcaleka for her decision. Although I am not a lawyer, I still fail to understand why someone who was dragged before the courts of law on issues that started in her line of duty would be seen as a personal matter. This leaves a lot to ruminate about. However, the fact that Gcaleka draws a distinction between the Office and the incumbent, is something that should be commended.

Recently, Gcaleka explained why she withdrew Mkhwebane’s court challenge regarding her [Mkhwebane] impeachment in the name of the Office of the Public Protector.

In Gcaleka’s view, Mkhwebane’s litigation strategy meant “to pursue and enforce” her personal rights and interests “affected both the liability and legal standing of the Acting Public Protector and the PPSA in these matters”.

In a way, these different interpretations should not come as a shock.

The impeachment of the Public Protector is unprecedented.

Chapter 9 institutions (including the Office of the Public Protector) were established in terms of Section 193 of the the Constitution of the Republic of South Africa. Specifically, the Office of the Public Protector was established in terms of Section 193(1).

Although Section 194 of the Constitution outlines the steps that need to be followed when removing someone like the Public Protector and the Auditor-General, no rules and procedures had been drafted. When the call to investigate Mkhwebane’s fitness to hold office was made, these rules had to be scrambled and put together in a rush. This was due (at least in part) to the fact that Mkhwebane’s term of office comes to an end in 2023.

Ideally, the process should have been handled smoothly to prepare for the future.

Unfortunately, political meddling necessitated that the process should be rushed.

Given this context, it would be unfair to totally dismiss Gcaleka’s decision not to support Mkhwebane in as far as the Office of the Public Protector is concerned but would still fund Mkhwebane’s challenge to her suspension.

Like everyone else (including Members of Parliament), Gcaleka is learning in the process. In her case, she interprets the law in the manner she deems it necessary in order to protect the image of the Office of the Public Protector.

With regards to the reports that Gcaleka has already concluded, there are mixed reactions on some of them. A case in point is the investigation on the leaked voice note from President Ramaphosa. Her finding was that the President did not break any law and thus she cleared him.

While her view is grounded in law, there is a question of morality. Was the President not morally obliged to report wrong doing by members of the party over which he presides? Was looking the other way when some ANC members were in contravention of the law not tantamount to complicity? These are but some of the questions that could be used to drill holes into Gcaleka’s conclusion.

A related case, which has not yet been concluded is the Phala Phala matter. Gcaleka is on record saying that her office is not going to rush this matter. She cited previous investigations to support her stance. These included the Nkandla investigation, Bosasa, CR17 investigation and the State Capture investigation – all of which took far more than three months at the Public Protector’s Office. In a way, she has a point. One can give her the benefit of the doubt by saying that she wants to satisfy herself that she has done due diligence.

But the other side of the coin is that this issue is of public interest in many ways. Firstly, it involves the President of the country. Secondly, the President has constantly argued that he is anti-corruption. As such, people would want to know if indeed he walks the talk. Thirdly, there is an ANC elective conference coming in December 2022. The outcome of her investigation could take the conference in either direction.

Given these contexts, would it not be prudent to expedite the process of investigating this case so that the public would know the outcome sooner than later? This is one question that Gcaleka may want to consider – not just for her own reputation (important as that might be) but also for the sake of the country in general, the ANC as an organisation and the President himself as the implicated party.

The Eastern Cape Scooter Ambulances investigation, Eastern Cape Transport Department investigation and many others were some of the reports that Gcaleka tabled to the public and made detailed recommendations. While these issues were also of public interest, they did not draw too much attention.

As things stand, Mkhwebane’s impeachment proceedings are still under way.

Meanwhile, Gcaleka is holding the reigns at the Office of the Public Protector. Given what has been discussed above, a few issues are worth noting.

Should Mkhwebane be cleared of the allegations levelled against her and be allowed to return to her Office to complete her contract, how is she going to work with Gcaleka?

Most importantly, since several employees have been called in to give evidence at the ongoing Section 194 Parliamentary Committee, if Mkhwebane were to return to her Office, what would be the relations between her and these employees? Above all, how would their relations impact the image of the Office of the Public Protector?

In a different scenario, assuming that Mkhwebane is successfully impeached and Gcaleka possibly assumes Mkhwebane’s position (even if deservedly so since she is also a lawyer in her won right), how would such a development portray Gcaleka? Importantly, how would that affect the image of the Office of the Public Protector?

Another angle to this discussion is that there are different role-players. When Mkhwebane won the case of her suspension, she was supposed to have been allowed to return to her Office. However, the immediate appeal against this judgement meant that the status quo had to remain. Was this rushed appeal based on law or was it an evidence of political meddling? Should the image of the Office of the Public Protector be tarnished, would those who frantically appealed be proud of their decision?

I have deliberately posed a number of questions in this piece and left them unanswered. This is to allow those involved to formulate their responses. If not in public, they should at least do self-introspection and ask themselves if they are proud of their decisions at this point and if they will be proud of them in a few years’ time.

While it is clear that there are a number of actors on the issues regarding the Office of the Public Protector, the bulk of the responsibility lies with both Mkhwebane and Gcaleka. Once the parliamentary process has been concluded, the two will have to put the country first and bury their differences. This should not be misconstrued to mean that all other role-players are insignificant actors. They are still important. However, the integrity of the Office of the Public Protector’s Office lies, in the main, with the incumbents.

Mngomezulu is Professor of Political Science and Deputy Dean of Research at the University of the Western Cape.

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