Pierre de Vos, Constitutionally Speaking
21 May 2019
The decision by the Gauteng High Court to review and set aside the Public Protector’s Estina Dairy Farm Project Report raises new questions about the honesty and competence of the incumbent, Busisiwe Mkhwebane. While it is normal for constitutional office bearers to err from time to time and while they should not be removed from office merely for making an honest mistake, the findings against Mkhwebane contained in three different court judgments are so egregious that it has probably irrevocably tainted her credibility and has eroded public trust in her ability to act in a fair, impartial and legally informed manner to protect the public.
Section 194 of the South African Constitution prescribes a two-stage approach for the removal of the Public Protector from office. First, a committee of the National Assembly (NA) must engage in a factual inquiry to determine whether the Public Protector is guilty of misconduct or incompetence, or suffers from incapacity. If they answer yes to this question, the NA must then consider whether to support a resolution calling for her removal from office. The President is required to remove the Public Protector from office if at least two thirds of the members of the NA vote in support of the resolution to remove her.
Two previous judgments (South African Reserve Bank v Public Protector and Others (43769/17)  ZAGPPHC 443 and Absa Bank Limited and Others v Public Protector and Others (48123/2017; 52883/2017) read with the Gauteng High Court judgment handed down this week provide ample evidence that the Public Protector has acted in an incompetent manner, getting the law and the facts disastrously wrong on numerous occasions. The judgments also contain at least some evidence that the Public Protector has an adventurous relationship with the truth and may have attempted deliberately to mislead the courts and the public to protect powerful individuals, and may therefore be guilty of misconduct.
The Gauteng High Court judgment in Democratic Alliance v The Public Protector – handed down earlier this week – contains several troubling findings that may place further pressure on the NA to begin an inquiry into the Public Protector’s fitness to hold office. Some of this relate to the tardiness of the investigation into the Estina Dairy Farm Project, and some to the often contradictory and legally mistaken arguments advanced in her defence in court.
While there may be an attempt to appeal the judgment and while it is not inconceivable that an appeal court may soften some of the harsher criticism contained in the High Court judgment, this will not change the fact that there were glaring problems with the investigation which happened to benefit high profile politicians like Ace Magashule and Mosebenzi Zwane – who also just happen to be allies of former President Jacob Zuma.
I agree with the High Court that the Public Protector’s most blatant failure in this case was to not properly investigate the impact of the Project on the approximately 80 “farm empowerment” partners promoted by Mr Zwane, who were supposed to have benefited as stakeholders in the Project No attempt was made to get a statement from any of intended beneficiaries. As the High Court noted:
The beneficiaries were the people who should have taken centre stage in this investigation, as they were the people, the vulnerable ones, for which her office was specifically created and who were deprived of an opportunity to benefit and better their circumstances. Instead they were ignored, and their interests were relegated to a mere peripheral issue. It is an absolute disgrace that some, as yet unidentified people, benefited, while the poor and the marginalised were yet again robbed of an opportunity to better their circumstances… The exercise to obtain their statements could not have caused a significant strain on her resources… Their story has not been told, neither did they get any benefit from this project. Yet R342 million was paid to entities connected to this Project and unknown people were enriched.
The Public Protector offered two interrelated arguments to justify this lack of concern for the victim of the seemingly fraudulent scheme. First, she claimed in her report that she did not have information relating to the beneficiaries. The court found that the Public Protectors claim in this regard was false.
Mmusi Maimane, leader of the Democratic Alliance (DA) took along several of the intended beneficiaries of the Project to the offices of the Public Protector. The DA also furnished the Public Protector with the Department’s list of intended beneficiaries, together with a letter of complaint from representatives of the Beneficiaries’ Steering Committee. In addition to recording the beneficiaries’ identity numbers and addresses, the list also included their cell-phone numbers.
Second, the Public Protector placed the blame on the DA and said that they undertook to get the statements which they did not do.
This excuse is quite extraordinary as an independent constitutional body claimed that it was intending to outsource part of an investigation to a political party with a vested interest in the outcome of the case. It is akin to the National Prosecuting Authority (NPA) admitting that it was relying on the DA to obtain witness statements to be used in the prosecution of former President Jacob Zuma. As the High Court noted:
Leaving the duty in the hands of a political party was totally inappropriate and could potentially have impacted on the impartiality of any statement so obtained.
The Public Protector did not only fail to investigate the impact of the scheme on the potential beneficiaries. She also opted not to investigate a third complaint lodged in May 2016, and thus failed to investigate the involvement of then Premier Ace Magashule and Mosebenzi Zwane in the scam. She claimed there was no time to investigate this matter. However, as the final report was only released in February 2018, 22 months after the complaint was lodged, the court rejected this excuse stating:
It is inconceivable that, having regard to the dates, she could seriously contend that it was too late for her proper consideration.
The Public Protector in addition stated in her affidavit to the court that she had not investigated many of the alleged wrongdoing by exercising her discretion to “opt out” and not to investigate. The court found that there were two problems with this defence.
First, it is never a winning legal strategy to present two, mutually destructive, justifications to the court, so it is not surprising that the court pointed to just such an incidence in rejecting the opt out defence. The Public Protector had told the court in her affidavit that she had only “deferred” the investigation on some of the issues to a later date. This was in direct contradiction of the previous statement in her affidavit that she had opted out and had decided not to investigate certain matters at all
Second, the court held that the Public Protector did not have the extensive powers she claims she had to opt out and not to investigate complaints lodged with her office. The court held that the investigative power vested in the PP is coupled with a duty to exercise that power:
when the [Public Protector] receives a complaint reporting a matter within her jurisdiction, she must conduct at least a preliminary investigation to determine the merits of a complaint, unless one of the exceptions in section 6 applies. Only after conducting a preliminary investigation of the merits, may she, for good reason, decline to investigate the matter further. Should she find that there is merit in the complaint that requires further investigation, she is obliged to either investigate the matter herself, or to refer the matter for further investigation to another appropriate authority. Should she choose to undertake a further investigation, she must investigate the matter proactively and effectively.
I suspect this finding might go too far. Where a complaint is obviously frivolous or patently has no merit, it would be a waste of time and resources to require the Public Protector to launch a preliminary investigation into the complaint. For example, would the Public Protector have a legal duty to investigate a complaint that Minister Pravin Gordhan had more than R660 million stashed in a secret Canadian bank account, given that this allegation was based on facts that have been incontrovertibly debunked?
However, the complaints implicating Ace Magashule and Mosebenzi Zwane in wrongdoing are clearly not frivolous or patently without merit. Which means that even if a higher court modifies the finding along the lines suggested by me it would not have any impact on the outcome of the case.
The judgment contains many other critical observations and findings about the manner in which the Public Protector conducted the investigation that unfortunately paints a picture of incompetence and/or dishonesty on the part of the Public Protector. I list a few snippets below to illustrate the point.
On what basis she could justifiably come to such a conclusion is unclear. It points either to ineptitude or gross negligence in the execution of her duties.
However, the findings of irregular expenditure in the provisional report were omitted from the final report. In the light of all the facts, this omission by the PP is inexplicable. One may justifiably ask whether this was done for some ulterior purpose. Unfortunately no explanation was given by the PP for these changes.
The failure of the PP to execute her constitutional duties in investigating and compiling a credible and comprehensive report points either to a blatant disregard to comply with her constitutional duties and obligations or a concerning lack of understanding of those duties and obligations.
The [Public Protector’s] failures to undertake these simple and cost effective measures are to put it lightly, of serious concern, as it may point to a concerning incomprehension of the nature and extent of her obligation towards the people of this country and her obligations in terms of the Constitution and the [Public Protector] Act.
[The Public Protector] contended that, only the Premier has that power in terms of the Public Service Act. However, this legal conclusion is obviously incorrect.
Furthermore the [Public Protector] contended that she did not have the legal power to instruct either the SIU or the Auditor-General to conduct an investigation. This interpretation of the law is incorrect as section 6(4)(c) of the Public Protector Act expressly empowers the [Public Protector] to, at any time prior to, during or after an investigation, refer any matter to the appropriate public body or authority to make an appropriate recommendation. The Public Protector was clearly aware of this fact, as she included the following in her final Report: ‘There is nothing in the Public Protector Act or Ethics Act that prohibit the Public Protector from instructing another entity to conduct further investigation, as she is empowered by section 6(4)(c)(ii) of the Public Protector Act.’
Read with the two other damning judgments listed above, a picture emerges of a deeply troubled institution led by somebody who has huge gaps in her legal knowledge and lacks an appropriate sense of fairness and impartiality. It is for exactly such a situation that the drafters included section 194 in the Constitution.