In a fashion reminiscent of Thuli Madonsela in 2009, a relatively unknown government department director, advocate Busisiwe Mkhwebane, has defied the odds to become the preferred candidate for the position of public protector.
Madonsela was also an unknown entity when she became public protector seven years ago. And her term at the Chapter Nine institution is arguably the most venerable in that office.
Madonsela’s most newsworthy report to date was "Secure In Comfort", in which she found that President Jacob Zuma had unduly benefited from non-security upgrades to his private home at Nkandla, made at huge cost to the state and taxpayers.
If Mkhwebane’s appointment is approved by the National Assembly and Zuma, one of the most important tasks awaiting her will be completing and releasing a report on the politically connected Gupta family, and claims of state capture made against them.
The report will serve as an early test of her independence in dealing with major cases pertaining to the abuse of power, where the stakes for the nation and those being investigated are high. Commentators say anything less than the leadership Madonsela has displayed would portray Mkhwebane as a political lackey in the eyes of the public.
According to the public protector’s annual report for 2013/2014, the office finalised 24,642 of the 26,195 new complaints it received in that year. This was against a total workload of 39,817 cases in the year.
During her interview with parliament’s ad hoc committee, Mkhwebane said highlights during her time as a director at home affairs included improvements in refugee services, participating in government’s tripartite plan for repatriating Angolans and reducing approval rates in refugee offices.
However, she said it was her time at the office of the public protector as a senior investigator and the work she did in building the capacity of the institution’s Gauteng office that gave her the confidence to vie for the coveted and unenviable position.
"While working at the office of the public protector I managed to help set up the branch office in Gauteng as well as ensure that liaison offices were established to make the office more accessible to township areas," Mkhwebane said.
Some committee members were impressed by Mkhwebane’s track record in defending human rights. She has worked as a senior researcher for the SA Human Rights Commission and served on the committee of the National Action Plan on Human Rights in 1998.
During the interview, MPs approved when she affirmed that the public protector’s role is to ensure transparency in state agencies and "not to play third umpire to matters of the court". The office is not there to fight the state but to work with it, she said.
"I will assist all players of government to improve service delivery, fight crime and corruption, [and] improve the country’s ranking in the international transparency index," Mkhwebane said.
When DA MP Glynnis Breytenbach asked why Mkhwebane went from being a director in home affairs to the position of analyst at the State Security Agency (SSA), she replied that she was merely focusing her skills in a different area.
"My position is not a demotion. It is a different scope of expertise," she said. "When I worked in home affairs I was a director and chief director. I worked in refugee and immigration law. When I worked there, I still worked in ensuring that the constitution was protected."
Judith February, a political analyst with the Institute for Security Studies, says Mkhwebane’s interview with the committee was among the best of the 14 short-listed candidates.
"I think she clearly gave a good interview. She was calm under pressure, handled her questions extremely well and had a good demeanour, which suggested that she has a bit of toughness hiding in there," says February. "Her experience in the public protector’s office was not too senior but she still has some knowledge of the office."
February says while Mkhwebane’s stint at the SSA is "not the most ideal item on her CV" in her bid to become public protector, her experience at home affairs shows she is comfortable with clearing backlogs and bureaucracy, which is an ideal trait for the next public protector.
"There is concern about her current job as an SSA analyst. One would prefer that that was not the case. People in that environment might have a pivot for secrecy. One wants as much openness as possible. That said, I really think she should be given the benefit of the doubt in this regard," February says.
The SSA also featured in other candidate interviews. While conducting the interviews, the committee received a letter that stated, among other things, that Zimbabwean-born deputy public protector Kevin Malunga was unfit for the post because of his security clearance.
It was later clarified that candidates for the public protector position did not, by law, require security clearance.
Ad hoc committee chair Makhosi Khoza told the Financial Mail that Madonsela’s seven-year term aspublic protector had raised public awareness about the importance of the office in defending democracy.
"I don’t think that she [Madonsela] did anything outside of what was expected of her in the position. In fact I believe her actions made the entire country aware of the importance of her office. Whoever takes over from her is going to have to up the game," says Khoza.
Khoza says the public protector’s office is important in instilling the belief among South Africans that government listens to their concerns. Where confidence in government is diminished, disenfranchised communities are prone to grow frustrated and view destructive protest and vandalism of public property as legitimate means of communicating their frustrations, she says .
"We can no longer lie about the leadership credibility crisis which our country is facing. The fact that we are starting to see members of the public being so enraged that they destroy property that is meant to benefit them, such as the situations in Tshwane and Limpopo, we have to do some introspection and ask ourselves what it is that we are not doing right," Khoza says.
In her interview, Mkhwebane said her integrity was the most important personal attribute she would bring to the office.
Members of the ad hoc committee that eventually settled on Mkhwebane appeared to have varying ideas on the role of the public protector.
DA members believed the office was critical to ensuring good governance and combating maladministration and corruption. However, ANC members believed the public protector should be a "nation unifier and not a crime buster".
Members from the ANC said the next public protector ought to pay more attention to the "bread and butter" cases brought to it. Madonsela has previously said that the overwhelming majority of cases she dealt with while in office were "Gogo Dlamini" cases.
The EFF seemed wary of the potential repercussions of politicising the office. EFF leader Julius Malema said the office could not be led by the wrong individual and any political appointee to the institution would be exposed.