On 12 September 2017, the South African Reserve Bank filed an affidavit containing evidence of a meetings where the Public Protector, Busisiwe Mkhwebane met with President Zuma’s legal advisors and State Security Agency  that took place earlier this year. According to the Public Protector’s notes of the meeting (which were attached to the affidavit) she and the President discussed amending the Constitutional authority of the Reserve Bank to protect the country’s currency.

Following these meetings, the Bankorp Report was released and recommended remedial action which, among other things, would see the Constitution amended to change the Reserve Bank’s authority. This remedial action was set aside in August 2017.

According Mkwebane, her meeting with the Presidency was to ‘clarify’ information relating the report and that she was permitted to consult with the President’s office on the recommendations and how they would be implemented. However, the Constitution explicitly requires that the Public Protector perform her functions independently and prohibits any person or organ of state from interfering with the functioning of the Public Protector.  If the President and other state agencies were ‘consulted’ on the kind of remedial action Mkhwebane should take, there can be no question that her independence has been undermined the independence and her recommendations have been unduly influenced.

Earlier today, a spokesperson for the Office of the Public Protector, attempted to explain that the meeting took place under section 7(9) of the Public Protector Act.   Section 7(9) requires that the Public Protect give a person implicated in her investigation an opportunity to respond. Given that President Zuma and his office were in no way implicated in her investigations into the Absa Bailout, the meeting could not have taken place under the Act.

The question is then, what should happen if either the Public Protector’s independence is compromised or the Public Protector demonstrates that she is not familiar with the laws that regulate her office?

The Public Protector is only accountable to one organ of state, Parliament and as a result, it is only Parliament who can take action to remove Mkhwebane from office. Under section 184 of the Constitution, the Public Protector may be removed if certain conditions are met. Firstly, a committee of National Assembly finds that the Public Protector is incapacitated, incompetent or has committed misconduct. Secondly, the National Assembly must adopt a resolution calling for the Public Protector to be removed from office. It is worth noting that like a motion of no confidence, the resolution requires the support of two thirds of the National Assembly.

While the process is a lengthy one, there are strong grounds for a committee to find that, at the very least, Mkhwebane is incompetent. However, this finding will then need to be passed by a majority of Parliament. Whether this can be achieved in the current political climate is unclear.