Public Protector has a lot to answer

1 March 2021  

On 8 June 2020, I opened a criminal case with the SAPS about the illegal leaking of the Public Protector’s draft report. This is in addition to the work of my legal team who are readying my submission to overturn the final report to set aside its findings.

The draft, provided in terms of Section 7(9) of the Public Protector Act had been leaked to no fewer than 6 Sunday newspapers all on one day in what was a blatantly coordinated leak. A leak of the draft report is a criminal offence in terms of Section 11 of the Act.

I have initiated a PAIA application to obtain the list of individuals who were sent the draft report. The Public Protector Act makes it a requirement that a draft report is sent to those implicated by findings in the report to afford them the right of reply.

We have it on good authority that individuals who had no right to the draft report were in possession of it, and it does not take much imagination to see that they had a political motive to leak the draft report.

Despite submitting our PAIA application, the prescribed period of time has lapsed without the Public Protector providing the list of recipients of the draft report. The fact that the office of the Public Protector, as a Chapter 9 Institution empowered by our Constitution, can ignore their legal responsibilities under PAIA is appalling. We are currently submitting our appeal and are ready to approach the courts should the information not be supplied.

That this information is not being supplied to us demonstrates that the information we have received is credible and is consistent with the bad faith basis of the investigation. The implication when this is proven to be correct, is that the Public Protector supplied individuals the draft report who had both no right to the report and the foreseeable political motive to leak it. When it was leaked, the Public Protector received my written complaint and has not even replied substantively, much less pursued those who are the likely leaks of the report. 

The Public Protector may have more immediate challenges with the Portfolio Committee on Justice issuing their findings on her fitness to hold office to the Speaker of the National Assembly. However, I will not stop until this report is overturned and the bad faith basis of the investigation is revealed for everyone to see.

I have long held the belief that ethical leaders do not limit their actions to verbally challenging a report, they take legal action so that the matter can be ventilated transparently for the media and South African public to see. This is why, even without a remedial action against me in the report, I will ensure it is overturned in an open court of law.

Issued by Herman Mashaba, ActionSA President, 1 March 2021