Public Protector of South Africa statement

20 March 2019

Adv. Busisiwe Mkhwebane, on March 13, 2019 in Brooklyn, Pretoria, laid criminal charges against the Minister of State Security, Ms. Dipuo Letsatsi-Duba, over what the Public Protector sees as interference with the functioning of her office and contempt for her. The charges have been laid under case number 404/03/19.

This follows Minister Letsatsi-Duba's failure to avail to Adv. Mkhwebane a declassified document she requires in connection with an investigation into alleged violation of the Executive Members' Ethics Code by former Minister of Finance and incumbent Minister of Public Enterprises, Pravin Gordhan.

In terms of section 7(4)(a) of the Public Protector, read with section 7(5) of the same legislation, the Public Protector has the power to direct any person to submit an affidavit or appear before her to give evidence or produce any document, which has a bearing on a matter under investigation. She may also examine the person. Section 11 of the Act provides that any person who without just cause refuses or fails to comply with a direction of request under section 7(4) referred to above or refuses to answer questions put to them under that section or gives answer which they know to be false shall be guilty of an offense. According to the act, any person convicted of such an offense shall be liable to a fine not exceeding R40000 or imprisonment for a period not exceeding 12 months or both.

In addition, section 181 (2) of the Constitution requires the Public Protector to be impartial and to exercise her powers and perform her functions without fear, favour or prejudice while section 181 (4) thereof provides that no person may interfere with the functioning of the Public Protector.

"It is my respectful view that the Minister's failure to avail the declassified report as subpoenaed amounts to contempt of the Public Protector and interference with the functioning of my office, and is therefore an offence," Adv. Mkhwebane said.

"The Constitution makes it clear that no person or organ of state may interfere with the functioning of independent constitutional institutions such as my office. The Constitutional Court has clarified this further, explaining that, in doing my work, I am not to be inhibited, undermined or sabotaged and that my powers are 'not supposed to bow down to anybody.

Issued by the Public Protector South Africa, 20 March 2019