By Phephelaphi Dube: Director, Centre for Constitutional Rights
Why did the Public Protector initially refuse to give ABSA, one of the parties cited, a copy of the ABSA bailout report, only to relent at the threat of legal action? Why did the Public Protector give a copy of the same report to the Gupta-family funded pressure group, Black First Land First (BLF), without extending the same courtesy to Adv Paul Hoffman, the complainant in the matter, or even the likes of former President Thabo Mbeki, whose name features prominently in the report? Even more disturbing, as the South African Reserve Bank (SARB) charged today in papers filed before the Gauteng High Court of South Africa in Pretoria, the fact that she consulted with both the Presidency and the State Security Agency (SSA) and neglected to include transcripts of the meetings.
This is deeply troubling for many reasons. The Constitution establishes the Public Protector’s Office as an independent body, subject only to the Constitution. It is imperative that the body be impartial, exercising its powers and performing its functions free from fear, favour or prejudice. Importantly, the Constitution underlines the fact that no person or organ of state, which includes the Presidency and the SSA, may interfere with the functioning of the work of the Public Protector.
According to the sketchy notes on the meeting with the Presidency, made by the Public Protector – which she had initially classified as confidential and therefore could not be accessed by any of the parties to the litigation – the ABSA bailout report was discussed. So too, was the Public Protector’s remedial action to direct a Special Investigations Unit (SIU) investigation against various institutions mentioned in the ABSA bailout report, as was the recovery of the R1.25 billion from the financial institution. It stands to reason that the remedial action discussed had no rational link to the Presidency. As such, there does not appear to be a legal basis for the Presidency to have been approached in this regard. In the final ABSA bailout report, the Public Protector does not make mention of this meeting, despite including other meetings such as those with the Department of State Security.
The Public Protector further held meetings with the SSA. It must be noted that the Public Protector was previously employed as an analyst by the SSA. The Official Opposition had previously charged that she had worked as a spy for the Agency while working at the South African Embassy in China, although this is yet to be proven. As with her meeting with the Presidency, the Public Protector has not included transcripts of the meeting in the ABSA bailout report, but rather a note with a section dealing with the Reserve Bank in which she poses the question “How are they [the Reserve Bank] vulnerable?”
Of course, the underlying CIEX report, which forms the basis of the ABSA bailout report, is a matter of public interest and arguably, historic justice, of which finality in the matter is needed. It is also true that the democratic State failed to act on the initial CIEX report, thus possibly depriving the South African purse of a much-needed cash injection. It is also true that the Public Protector’s Office has to date, finalised and made publicly available 17 other reports without the same major concerns as those raised in the ABSA bailout report. However, this does not go nearly far enough in terms of dissuading public opinion as to the motives of the Public Protector. The credibility of her work and that of the Office suffered a monumental self-inflicted blow in the wake of the Public Protector’s error in law regarding the mandate of the Reserve Bank. It seems as if the Public Protector and her Office will not be recovering from this mishap anytime soon, given the latest revelations, which cast doubt as to the independence of the Office.
The nation finds itself dealing with widespread allegations of State Capture, with reported collusion from some parts of the private sector. South Africa needs robust independent institutions to tackle the deepening scourge, as well as a renewed hope in the abilities of bodies such as the Public Protector, to effectively deal with the malaise. As things stand, the Public Protector and her Office are failing to live up to that challenge.