The Black Lawyers Association is of the view that the Legal Practice Council does not have jurisdiction over Adv Mkhwebane for her conduct as a Public Protector

19 August 2019

The National Executive Committee of the Black Lawyers Association (the BLA) has noted, considered and reflected upon the unprecedented findings of the Constitutional Court in the matter of Public Protector V South African Reserve Bank and others.

It is already a matter of public record that in 2018 the Gauteng Division of the High Court, Pretoria in an application by ABSA Bank and the Reserve Bank for the review of the remedial action of the Public Protector, issued an order reviewing and setting aside the remedial action in respect of the investigation conducted by the Public Protector about the apartheid era payments made by the South African Reserve Bank to the Bankcorp a banking institution that was later acquired by ABSA, the so called “Lifeboat transaction”.

In consequence of the order on the merits, the Pretoria High Court ordered the Public Protector to pay part of the costs of the Reserve Bank in her personal capacity, the so called order of costs di bonis propriis and on an attorney and client scale, also known as punitive costs order.

The Public Protector appealed to the Constitutional Court against the costs order in so far as it related to the payment of costs in her personal capacity. The outcome of that appeal is that the costs order of the High Court was confirmed by the majority of the Justices of the Constitutional Court whilst the minority was of the view that the order imposed by the High Court was unwarranted.

In confirming the decision of the High Court, the majority Justices of the Constitutional Court made serious comments about the Public Protector. These comments included a finding that in her affidavit, the Public Protector put forward various falsehoods and this, we were told by the Constitutional Court told, is part of the reasons why they found the order of the High Court to be completely fitting.

On the other hand, the minority judgment saw no falsehoods in the affidavit of the Public Protector and thus the minority felt an order setting aside the order of the High Court would have been the appropriate order. 

We would like to state from the onset that we respect the independence of the judiciary and we are committed to the rule of law as encapsulated in the Constitution of our free and democratic Republic whose existence owes itself to many who sacrificially laboured to achieve it.

The decision of the Constitutional court in the matter is final and there is no latitude for a further appeal by the Public Protector, she has to comply with the order as and when same is enforced against her through the normal processes governed by the rules of the court.

We have further noted that the Constitutional court did not order any costs against the Public Protector in line with the comments the majority justices made against the Public Protector. This is interesting since the High Court censored the Public Protector for persisting with the opposition of the matter before it and the Constitutional Court seems to have found no reason to reject that finding. In these circumstances it would have been expected of the Constitutional Court to sustain the logic of the High Court through to its own costs order.

Having seen the judgment on the very day it was handed down, the BLA took an elaborate amount of time to consider not only the Constitutional Court judgment but also the High Court one since there is and must be a particular correlation between the two in view of the fact that the majority Justices of the Constitutional Court, on their own, adopted the entire logic of the High Court and affirmed it as being correct. They did not differ with the reasoning of the High Court as it was opened to them to do even if they dismissed the appeal. This is because an appeal in our law lies not against the reasons but against the order itself.

We have also noted comments made by various analysts and “experts” in the public discourse regarding the decision and comments made by the majority Justices of the Constitutional Court some of which were made a few minutes after the judgment was handed down and in circumstances where it was virtually impossible for such commentators and “experts” to have fully read the judgment. Clearly their comments were made based on media soundbites and this is a deplorable conduct.

In addition, various civil society organisations have weighed in on the comments made by the majority Justices of Constitutional Court. Some have even taken it a step further to lay a complaint against the Public Protector with the Legal Practice Council (the LPC), presumably on the basis that it is the body which regulates professional conduct of all legal practitioners in South Africa. Some bodies have referred the matter to South African Police Services and the National Assembly for investigation with the possible consequences of the Adv Mkhwebane to be arrested, prosecuted and / or removed from the office of Public Protector.

We therefore stress that civil society organisations, particularly lawyers’ organisations, owe it to themselves to provide society with careful analysis of court judgment interposed by fair commentary deriving from fair a careful reading of such judgments.

BLA’s VIEW ON THE MAJORITY JUDGMENT OF THE CONSTITUTIONAL COURT.

As already stated, we have not read the judgment of the Constitutional court in isolation from the judgment of the High Court, we have also explained why this is necessary.

We have noted in relation to an instance of “falsehood”  which appears in the majority judgment of the Constitutional court, the High Court stated the following;

“The Public Protector relies on new reasons in her answering   affidavit which do not accord with the reasons she set out in her report. She justifies her findings ex post facto in the answering affidavit. She attaches documents that were not filed and were not included in the record of proceedings filed in terms rule 53. Her averments that she had received advice from economic experts whilst compiling the report, is doubtful. Dr Makoka’s report was only obtained after the Report had been issued and the review applications had been served”

The above conclusion is taken a step further in the Constitutional Court judgment of the majority, that is, from being “doubt” to “falsehood” without any explanation from the court. The minority judgment correctly accepted that, “just as partiality or apprehension of bias in relation to Judicial Officers is not lightly inferred, so should it be with the Public Protector.”

There is further no explanation from both courts in support of the finding of bad faith on the part of the Public Protector save an accusation that she did not disclose additional meetings which she held with the Presidency and yet the very information to make that accusation was volunteered by her.

Both the High Court and Constitutional Court majority judgment accuse the Public Protector of failure to appreciate her constitutional obligations, and the basis for this is that she did not give one of the implicated parties a second opportunity to make representations or respond to her provisional report and yet no prejudice is pointed out resulting from this failure.

Both courts did not give any particular interpretation of sections 5(3) and 7(9) of the Public Protector Act, 1994. These sections are pertinently central in any finding about whether the implicated parties have a right to be heard in relation to remedial action and precise parameters of section 5(3) of the Public Protector Act. We thus remain at a loss as to the principle meaning of these sections despite the findings of majority justices of the Constitutional Court.

We wish to record that the jurisprudence relating to the interpretation of the Public Protector Act, 1994 is new and evolving. The law in relation to whether implicated parties are entitled to be heard regarding the remedial action is not as yet settled. 

We have thought it necessary to provide a detailed analysis of the judgments because, as a lawyers’ organisation we owe society much more than emotional outbursts and interpretation of un-contextualised media soundbites so common place in our public discourse.

We remain of the firm view that none of the comments made by the courts justify a finding of incompetence or misconduct or incapacity on the part of the Public Protector. There are various instances where judges have themselves been subjected to negative comments by appellate judges without such judges being called incompetent. For instance, in this judgment the minority Justices harshly criticized the High Court Judges when it held that the reasoning of the High Court “leaves us none the wiser”; “That is how woefully inadequate the High Court judgment is in addressing this all-important subject of personal costs on a punitive scale”; And “Its own handling of this matter is really no different from, if it is not worse than, that of the Public Protector”.According to the minority judgment the judges of the High Court, in handling this matter, were worse than the public protector. Must the Judicial Services Commission commence disciplinary action against them?

In light of the above and the fact that the conduct which Adv Mkhwebane is criticised of was in respect of her handling investigations as a Public Protector not as a legal practitioner the LPC does not have jurisdiction to discipline her. Otherwise the LPC will be elevated into a super disciplinary body which will have powers to discipline everybody including the President of the Republic, Ministers or Members of Parliament only on the basis that they are admitted and enrolled as legal practitioners irrespective of fact that the conduct in question was not in furtherance of the interest of the legal profession.

Section 2 of the Public Protector Act read with section 194 of the Constitution of the Republic of South Africa, 1996 provides sufficient mechanism to discipline the Public Protector. There is no need to defer to the LPC the discipline of the Public Protector. We urge the LPC not to succumb to external pressure to discipline the Public Protector when it is not legally empowered to do so. In any event if the LPC decides to cloth itself with disciplinary jurisdiction over the Public Protector in this matter it must, in order not to prejudice the constitutional rights of the Public Protector, keep its investigations in abeyance until the criminal prosecution and Parliamentary process would have been completed.

In conclusion and in view of the fact that the High Court did not nullify the whole Public Protector report regarding investigation into the so called lifeboat transaction, we urge the Public Protector to fix and rectify whatever was found to be wrong regarding her remedial action by the High Court and proceed to issue a new remedial action on the matter. It is unacceptable that public finances are unlawfully siphoned to private commercial interests and entities like Banks without any consequences due to procedural shortcomings in the investigation process.

Issued by Baitseng Rangata, Deputy President, Black Lawyers Association, 19 August 2019