Paul Hoffman SC, Director Accountability Now – 5 August 2019
The brouhaha surrounding the credibility and suitability for high office of Public Protector Busisiwe Mkhwebane has reached a crescendo of ugly noise in which the facts and applicable legal principles seem to be playing an increasingly irrelevant role.
In order to concentrate the minds of those involved in the prickly tasks of decision-making around the future of Public Protector Busisiwe Mkhwebane, and in order to inject a stiff dose of reality into the debate, Accountability Now has laid criminal charges of perjury and defeating the ends of justice against her.
The matter will be investigated by SAPS, who have been requested to accord it urgent treatment. The charges are based entirely on the binding findings of the Constitutional Court in the costs spat between the Reserve Bank and the public protector. Accordingly, the police investigation is a simple one. The original affidavits in which the public protector lied on oath are safely filed in the office of the Registrar of the Constitutional Court and the judgment itself is readily available online. A completed docket can be presented to the NPA within a few days.
Until today, the public protector was only officially under investigation on two fronts. The parliamentary portfolio committee on justice has, since January 2017, been seized with her honesty and competence as they impact on her work. A complaint back then by Accountability Now that she is dishonest and does not accord due process to those she implicates in her “appropriate remedial action” has received little or no attention, either in the fifth or the sixth parliaments. The fact that the current committee will only first consider what to do about the public protector in September suggests that the political hot potato is being allowed to cool for as long as possible.
All efforts by the Democratic Alliance to get Parliament to fulfil its constitutional duty to inquire into the alleged incompetence of Mkhwebane have not yet borne fruit; the complaint made by John Steenhuisen, its chief whip, has also been kicked into touch until September.
The disciplinary processes of the Legal Practice Council have been engaged following the handing down of the judgment of the Constitutional Court. The fact that the public protector persists in denying that she has done anything wrong aggravates the situation and ought to impel the acceleration of the necessary processes of the disciplinary committee tasked with making the simple decision: “Should the name of an advocate who lies on oath and attempts to mislead the court in which her affidavit is lodged be allowed to remain on the roll of advocates?”
Unlike Parliament, the LPC has well-oiled machinery, a set of rules to apply to the complaint and the legal expertise to deal with the matter efficiently. The political sensitivity of the matter is irrelevant to the legal inquiry of the disciplinary committee, although political pressure may test its independence.
Parliament has yet to adopt rules for the inquiry that must precede a vote on the fitness for office of a public protector. An attempt to run the inquiry in accordance with natural justice will elicit a strong reaction from the public protector, who remains determined to see out her seven-year term of office. She will, if she runs true to her form, take on judicial review any process by Parliament in which rules are not laid down expressly. That legal wrangle will occupy most of the balance of her term of office, if the courts do not accord the matter accelerated hearing and are so badly managed and ill-advised as to let the matter linger on and wend its way through the two layers of appeals available to whoever is not satisfied with the ruling in the initial review proceedings.
It is also probable that Mkhwebane will draw comfort from the charmed lives of Nomgcobo Jiba and Lawrence Mrwebi, who managed to milk the delays on appeal for all that they were worth and, despite four of the seven judges seized with the merits of the matter finding against them, they escaped being struck off the roll of advocates by a whisker because three of the five judges on appeal found for them and the Constitutional Court, perplexingly so, washed its hands of the merits of the matter.
Their charmed professional lives in the NPA ended when the Mokgoro Inquiry recommended their professional demise and the president acted on that recommendation. They are currently in the last chance saloon of Parliament.
The facts of the Mkhwebane striking off are far simpler than those in the Jiba and Mrwebi cases. The finding against her by the Constitutional Court is damning, final and cannot be appealed. If she had a milligram of decency she would resign, both as public protector and as an advocate. Perhaps the institution of criminal proceedings will help concentrate her mind and impel her to reconsider her recalcitrance. Perhaps not.
The latest nonsensical suggestion by Mkhwebane that she should be treated like a judge would be laughable if it did not reveal how seriously deluded she is about the inwardness of her role in the constitutional scheme in place in South Africa. Judges are drawn from the ranks of senior legal practitioners. They undergo a rigorous process of pre-selection and selection by the Judicial Service Commission. Not for them a breezy PowerPoint presentation to a parliamentary committee. Their work, their judgments as acting judges and their entire pedigrees are closely interrogated. In short, Mkhwebane would not stand a snowball’s hope in hell were she to appear before the Judicial Service Commission.
The function of the judiciary is entirely different to that of the Office of the Public Protector. The judges adjudicate cases that are brought to them; they do not hold press conferences, keep Twitter accounts or post videos on youtube. They also do not invite litigants to have a preview of their judgments, and when their judgments are under attack, they maintain a dignified silence and allow the appeals processes available to do the talking for them.
The work of the public protector is investigative, not adjudicative; her “appropriate remedial action” is meant to be run past those implicated to give them an opportunity of setting the record straight, requesting alternative remedial steps or showing that no steps at all are indicated.
There is no appeal against the reports of the public protector. Only review proceedings, aimed at determining the rationality of the work that went into the report under review, are available to those dissatisfied with the outcomes and contents of the report implicating them.
The jurisdiction of the Office of the Public Protector is extremely limited. Maladministration in the affairs of state and in the public administration is its main task. The ethics of the executive branch of government are also policed by the public protector. It is sadly so that the weakness of the criminal justice administration during the Zuma years brought the public protector to the fore in the fight against the corrupt, but her core business is actually maladministration, not corruption. A different skill-set is required to investigate the corrupt, who deliberately do wrong, while negligence, inadvertence and incompetence are usually behind maladministration, not deliberate malfeasance.
The fact that the current public protector appears to have little or no insight into the issues discussed above is worrisome for all who wish SA’s constitutional project well. It is intolerable that she has become a political player, a rogue lawyer and a menace to the proper functioning of an important institution that is meant to protect the public, not play factional politics.
It is to be hoped that the effective and efficient investigation and prosecution of the criminal charges will bring the entire matter to a head without delay.
On any version, the start of the proceedings of a committee of the National Assembly for the removal of Mkhwebane from office will be on (or before) 3 September. On that day the Deputy President should be asked to suspend Mkhwebane in terms of the powers he has under section 194(3)(a) of the Constitution, read with section 90(1). The President himself is unable to act in relation to the suspension of Mkhwebane because he is conflicted by the litigation he has launched against her. It thus falls to the Deputy President to fulfil the duty of the President to suspend the public protector while the proceedings against her in Parliament are pending. They may be pending for some time if it is decided to establish parliamentary rules for the necessary inquiry.
The debate around the future of the public protector needs less political heat and more legal light. The four-pronged pitchfork of criminal prosecution, striking off the roll of advocates and suspension by the Deputy President pending a parliamentary removal from office process may, in combination, bring the public protector to her senses sufficiently to do the honourable thing by her country and resign.
If she listens to her conscience she will quit.
~ This article first appeared on Daily Maverick