NEWS & ANALYSIS

How many times can the Public Protector lose in court?

Paul Hoffman writes on Busisiwe Mkhwebane's latest legal setback

A Full Bench of the Western Cape High Court has sent the Public Protector packing, again, refusing her all forms of interdictory relief she claimed against both president and parliament in Part A of her case. The court also warned her that punitive costs orders could be in the offing if she persists in her attack, in Part B of the case, on the legality, validity and constitutionality of the rules made to discipline her and others in the Chapter Nine Institutions.

The six “Chapter Nines” can rightly be regarded as the integrity branch of government. They are called “State Institutions Supporting Constitutional Democracy” in the Constitution itself. All of them are enjoined to act impartially and without fear, favour or prejudice. Other organs of state are required to “ensure the independence, impartiality, dignity and effectiveness of these institutions.”

The Public Protector is appointed for a non-renewable term of seven years to investigate and report on any conduct in state affairs, or in the public administration, that is alleged or suspected to be “improper or to result in impropriety or prejudice.”

The Public Protector (unlike similar ombud institutions in other jurisdictions) has the power to take appropriate remedial action when satisfied that a situation reported is in need of remedial action. Those ordered to take remedial action are bound to do so unless they mount a successful judicial review of the decision of the Public Protector that requires remedial action of them.

All of the above is settled law since the seminal decision of the Constitutional Court in the Nkandla matter in which parliament sought to second guess Thuli Madonsela by magically converting Nkandla’s fancy swimming pool into a “fire pool” to the accompaniment of Wagnerian music.

Despite complaints from Accountability Now (December 2013), the EFF (March 2014) and the DA (also March 2014) the criminal justice administration has yet to mount a single prosecution arising out of the proven impropriety and prejudice to the public purse which Madonsela’s “Secure in Comfort” report reveals in minute detail. The matter remains “under investigation”. Jacob Zuma, who still lives at Nkandla, continues to lead a charmed life.

The scribe for the unanimous Full Bench which handed down its decision against the Public Protector on 9 October 2020, Justice Vincent Saldanha, did not find it necessary to refer to A.P. Herbert’s famous aphorism “a dirty dog gets no dinner from the courts” or expressly to the principle that “a good cause of action cannot be founded in a moral swamp”.

The suspicion that the incumbent Public Protector, Busisiwe Mkhwebane, deserves no dinner from the courts because she dwells in a moral swamp has been about since before she took office. The DA opposed her appointment before it was made. Shortly after taking office she was exposed, in January 2017, as both incompetent and dishonest in her handling of the “CIEX Report” complaint re-opened in 2011 by her predecessor.

Accountability Now complained against the State Security Agency for cancelling its contract with British covert investigative agency CIEX which reported it had exposed apartheid era malfeasance and was ready to scoop back the loot of that era in terms of the cancelled contract. A failure to recover that loot is obviously prejudicial to the public interest.

The incompetence and dishonesty of the Public Protector, Busisiwe Mkhwebane, is demonstrated by the manner in which she handled the complaint. The Constitutional Court has set aside her report in it on appeal and has confirmed the personal punitive costs award made against her in the Gauteng High Court.

An especially egregious level of incompetence is required to morph a complaint against the SSA into an instruction to parliament to change the Constitution in order to revise the mandate of the SA Reserve Bank. Misleading the courts on oath to defend her position only serves to compound Mkhwebane’s unfitness for office both on the grounds of misconduct and for her incompetence.

Months before the final report was published it was apparent that Mkhwebane had lost her way. An exchange of correspondence by email with her and a complaint about her to her oversight body, the Justice Portfolio Committee of the National Assembly, reveal the gory details of her perfidy. That exchange can be found here.

The short version is that the Public Protector lied about the existence of her preliminary report, failed to explain her lie and aborted the normal procedures that precede the production of a final report. In truth, she had signed a preliminary report on the CIEX complaint and had sent it to the then president, Jacob Zuma only weeks before she lied about its existence.

All of this information was reported to the Justice Portfolio Committee of the National Assembly in the context of a complaint about the unaccountable behaviour of the Public Protector. It was suggested in the complaint that she be required by her oversight body to answer a list of 13 questions put to her, which she had declined to answer because. as she put it: “I cannot investigate myself” (truly)!

Instead of parliament eliciting responses from the Public Protector, the complaint about her misbehaviour was ignored as was follow up correspondence. The complaint received the same unresponsiveness after the 2019 elections and the replacement of some of the parliamentarians in the Committee including its chair.

The decision of the High Court on 9 October has not gone down well with the Public Protector. She is taking advice on her next moves. Her game plan seems to be to string out the litigation around disciplining her for the entire unexpired portion of her seven year term of office. She has done untold harm to the image of her office.

She has cost the country billions due to alarm in financial sectors around that world regarding her ‘remedial action” in relation to the mandate of the SA Reserve Bank.Furthermore, she has repeatedly been mulcted in costs in her personal and official capacities. It is inappropriate that the budget of her office should be spent on lawyers defending her indefensible misconduct and dishonesty as revealed to parliament in January 2017, a few months into her term of office.

The Public Protector would be well advised to obtain guarantees from her lawyers that they will pay any adverse costs awards against her that may follow further fruitless litigation on her part. She would also be well advised to answer, in public, those 13 questions that have gone unanswered since they were posed in January 2017.

As Justice Saldanha observed in the judgment of 9 October:

“It is moreover not only in the public interest, but of equal importance are considerations by this court of not unduly intruding into the terrain of the National Assembly that is constitutionally mandated of holding the applicant (Mkhwebane) accountable. Such a function of the National Assembly is principally and constitutionally in the public interest.”

Mkhwebane herself sought to rely on the values of openness, accountability and responsiveness in her unsuccessful application. All three have been spectacularly absent from her treatment of the complaint made in January 2017 to parliament as her oversight body. It is manifestly not in the public interest to have a Public Protector who spends so much time and public money defending her lack of adherence to openness, accountability and responsiveness.

If, as appears to be the case, Mkhwebane is unable to answer the 13 questions without exposing her mendacity and lack of appreciation of the procedural intricacies of her position in an important State Institution that is meant to protect the public against the ravages of maladministration, she should resign. Instead she appears determined to cling to office despite the adverse findings of various courts and despite the mounting number of personal costs awards against her. As the court warned on 9 October:

While ‘Justice is blind’, the eyes of the court remain wide open and so too does its doors to ensure that a process as profound, unprecedented and solemn as that of a removal in terms of section 194 of a head or office bearer of a hallowed Chapter Nine institution is not reduced to a platform for gratuitous vilification or the unlawful action against any person.

“The public looks also to the Speaker in the National Assembly to ensure and maintain both the credibility and respectability of the entire process.”

It needs to be noted that it is not only parliament that has been slow to deal with the matter to the overall prejudice of the public. The Hawks have confirmed that they have opened a perjury docket against the Public Protector, but no criminal summons has been issued and no word on the progress of the docket has emerged from the criminal justice administration at any level. The Legal Practice Council, guardians of the probity and integrity of all lawyers, is investigating the unprofessional conduct involved in misleading courts with a false affidavit in the Ciex matter, but it too has not made progress with the complaint made to it in 2017.

The novel, contested and long overdue 17 step process of impeachment of the Public Protector appears to be the only process being pursued, at glacial pace, and still without answers to those 13 questions posed in January 2017. Officialdom at every level and in every sphere set out above ought to be better at exacting accountability from the Public Protector than that.

Her determined efforts, in criminal and civil courts and in parliament too, to spin out all complaints against her until the end of her term appear to be succeeding. Her attack on the rules of parliament is failing, her defences to criminal and disciplinary (striking off) proceedings are unknown and her opposition to the merits of the complaints parliament will now proceed to consider are on shaky ground.

Lady Justice is weeping into her blindfold.

Paul Hoffman is a director of Accountability Now.