Advocate Mkhwebane suspended – but not Judge Hlophe

10 June 2022

Again and again, Advocate Mkhwebane has embroiled her office in legal battles unrelated to her constitutional duty as Public Protector.

The courts have repeatedly made damning findings, in respect not only of her competence but also of her motives and integrity. For instance, in July 2019 the Constitutional Court said that she had put forward a “number of falsehoods” and that her “defiance of her constitutional obligations” was “egregious”.

These findings signalled Advocate Mkhwebane’s misconduct, incapacity or incompetence that the Constitution says can trigger action against her. Clearly no later than 2019 Parliament should have taken steps to have her removed from office and the President should have suspended her in the interim. This failure has caused the country untold harm. Millions have been squandered and weeks of court time wasted in frivolous and vexatious litigation – and the vitally important office of the Publc Protector has become an embarrassment.

There are echoes here of another disgraceful failure to safeguard public institutions, in this case the Judicial Service Commission’s abject dereliction of its duty to protect the integrity of the judiciary, no less vital a public institution. 

It is now 14 years since Judge President Hlophe lobbied two justices of the Constitutional Court in favour of Mr Zuma. Although the Judicial Service Commission months ago found him guilty of gross misconduct, and although the Constitution makes provision for suspension pending impeachment, he remains the public image of Justice in the Western Cape. Freedom Under Law has repeatedly called on the JSC to recommend his suspension to the President: perhaps the action now taken against the Public Protector will galvanise them into action.