The Constitutional Court has again protected the public against Public Protector Busisiwe Mkhwebane’s ‘ever-growing litany of legal catastrophes’, says the anonymous legal expert ‘Professor Balthazar’.

He says in last week’s ruling in Public Protector and Others v President of the RSA and Others, the Constitutional Court was required to consider a number of issues.

Writing on the Daily Maverick site, Balthazar examines two of the issues, arguing they show that Mkhwebane is legally incompetent, disingenuous and does not have the capacity to appreciate what the law requires of her.

The first issue is that the Public Protector’s finding that the President misled Parliament by allegedly breaching the Executive Ethics Code.

Justice Chris Jafta pointed out that Mkhwebane accepted that the President did not ‘wilfully mislead Parliament as per the code, but changed the wording to include ‘deliberate and inadvertent misleading’ so as to match with the facts.

Jafta ruled: ‘Having effected the change in the code, the Public Protector proceeded to conclude that the President had violated the code. It is unacceptable that the Public Protector did what no law had authorised her to do.’

Balthazar says it is regrettable that is all that was said about her conduct in that it can only be explained in one of three ways: ‘either the Public Protector is legally incompetent, or she acted disingenuously or a combination of both took place.’

The second issue is the finding that the President was obliged to disclose the R500 000 as a donation.

The Public Protector found that the President at the time of receipt of the donations was the Deputy President and hence a Member of Parliament. He was therefore bound by the code to declare such financial interest.

However, Jafta ruled: ‘What the Public Protector was required to do in order to address the President’s argument, was to refer to facts which established that the President received donations and that he failed to declare them. If such facts existed, the Public Protector would have referred to them in dealing with the President’s argument. The omission of those facts from her report is not an oversight. They simply do not exist.’

The ruling concluded: ‘The nature and number of errors committed by the Public Protector here call into question her capacity to appreciate what the law requires of her when she investigates complaints, arising from the violation of the code. This is surprising because the Public Protector is, by definition, a highly qualified and experienced lawyer. As required by law, she has no less than 10 years’ experience in the relevant field of law.’

Balthazar concludes that ‘in this situation, the crucial office of the Public Protector is simply bereft of any legitimacy’.

Full analysis on the Daily Maverick site