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Public protector going after her critics

According to EWN the Public Protector Busisiwe Mkhwebane is going to be laying charges against her critics for insulting her.

Mkhwebane claims to have been subject to insults for her role in going after the SARS rogue unit case, her report on Pravin Gordhan, and her findings on Absa Bank.

With regards to Absa, her ruling that the bank pay R1.125 billion was set aside by the Gauteng high court.

Mkhwebane was also ordered to pay 15% of her opponent’s legal costs, according to News24.

According to the Daily Maverick, this is just one of three cases that demonstrate Mkhwebane is incompetent, that provide evidence that she has ‘an adventurous relationship with the truth’.

The Rogue Unit report meanwhile, well, the Rogue Unit case at SARS is one of those situations that has ended with a lot of egg on a lot of faces.

KPMG had to withdraw their report on the Rogue Unit and agreed to pay SARS back the R23-million it charged for the report according to Times LIVE.

In fact the head of KPMG South Africa’s forensics division told the Ntsebeza inquiry that the findings and recommendations of the report where plagiarized from a memorandum drafted by law firm Mashiane Moodley and Monama (MMM) according to News24.

Tom Moyane tried to maintain that the report was still worth the paper it was written on, despite the fact that the auditors who wrote it didn’t stand by it.

The Sunday Times issued a public apology for its handling of reporting around the Rogue Unit, returning the awards and award money that it won for that reportage.

“What is clear is that we committed mistakes and allowed ourselves to be manipulated by those with ulterior motives,” Bongani Siqoko wrote in the apology.

More recently Judge Frank Kroon, who found the rogue unit to be illegal, has admitted that he didn’t have the evidence to make that ruling, and that he shouldn’t have done it according to the Mail and Guardian.

He stated that the KPMG report, which had since been withdrawn, played a role in that judgement.

According to Times LIVE, he recently apologised to the unit’s former members and their families. This was part of a deal whereby  ex-Sars investigator Johann van Loggerenberg withdrew his complaint against the judge.

She says she’s been called an idiot by a journalist and that she was “too forward” by a government Director General.

My Take

There are actually two issues here that I think need looking at.

Someone accusing her of being overly forward – I think that’s straight up sexism in our government. An investigator should by their natures be forward, you need a level of aggression just to do the job.

That said, being called an idiot by a journalist? Well, I’d be surprised if there was only one saying that.

Further, I don’t recall Thuli Madonsela ever doing this, and I think this is because Thuli Madonsela isn’t an idiot.

My reasoning here is simple, sure the public protector act does forbid insulting her, but the South African constitution guarantees freedom of speech.

I am going to quote it in full:

16. Freedom of expression

1. Everyone has the right to freedom of expression, which includes ­

a. freedom of the press and other media;

b. freedom to receive or impart information or ideas;

c. freedom of artistic creativity; and

d. academic freedom and freedom of scientific research.

2. The right in subsection (1) does not extend to ­

a. propaganda for war;

b. incitement of imminent violence; or

c. advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

So here’s the thing, the Public Protector is a government office, and one of the major important points to freedom of expression is the right to criticise the government, to engage in political speech.

You will note that the restrictions on the right to freedom of expression do not include – criticism of government offices.

So there is a real risk in taking this case forward, particularly if she is going after a journalist, that the Public Protector’s Act gets found to be unconstitutional.

Particularly given the history involved in this.

The media are going to be critical of her on this topic, because one of the biggest and most prestigious at the time newspapers in South Africa went after it – only to have to later issue an apology for their reportage, which they admitted was manipulated by political forces.

One of the world’s biggest auditing firms had to admit that their report on the unit had essentially copied and pasted its findings.

The judge who made the finding on the rogue unit had to admit that he didn’t have the evidence to make that finding, and has had to issue unprecedented apologies for it.

So how sensible does going after the “Rogue Unit” look to anybody who has been paying any attention? How much more discredited do these allegations need to be?

And then there is the Absa case, where the public protector’s report ultimately ended up with a cost order against her.

What that cost order translates to is the fact that the courts figured she shouldn’t have issued the order in the first place and was wasting their time by doing so. If a judge issues a cost finding against you, that’s the judge looking at the case and saying, “Well, duh, why did you do this stupid thing?”

That’s the central thing here – if you do things that have made the people who did the same thing before look like idiots, you’re going to get called an idiot.

But it is pointless simply pointing fingers and laughing at the Public Protector, there is something to learn here.

I think Mkhwebane is being driven by something other than stupidity and political alignment at this point.

I think when she ascended to office and began her campaign against Pravin Gordhan, it probably was a matter of being politically manipulated (whether knowingly or not) – and thus she was roundly criticised as being a puppet for Jacob Zuma.

That sort of situation breeds a powerful urge for vindication, that can make an utter fool of the best of us. It is how tenacity can be a negative trait – because it can mean sticking to your guns when you’re wrong, because you’ve got a sunk cost fallacy going on, you’ve invested so much into this that you can’t drop it now.

The Zuma era is over, having any loyalty to the man right now is largely pointless, all that Mkhwebane has to get out of this is the value of her good name and for the sake of that good name she cannot let go.

This isn’t a matter of her being corrupt, or a puppet, or even base-line thick in most matters, this is a matter of personal ego and very understandably so and an illustration of just how ego can be such a powerful drug.

  • Picture courtesy of GCIS via Flickr.
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