Public Protector or public threat?

7 August 2019

Our serving Public Protector has been compromised by some serious findings of our judicial system regarding her integrity and honesty. This raises important questions about her ability to effectively perform her duties. We are furthermore left to wonder how she was appointed to such an important position in the first place, and secondly, why it is so difficult, despite her shortcomings, to replace her? This unfolding of events encourages the South African public to earnestly rethink our constitutional order, its safeguards, as well as civil society’s role in it.

According to the South African government’s conceptualisation, the Public Protector’s position grants her the power – regulated by national legislation – to investigate any conduct in state affairs or in the public administration in any sphere of government that is suspected or alleged to be improper or to result in any impropriety or prejudice.

However, in July 2019 the Constitutional Court delivered a majority judgment which upheld the Northern Gauteng’s High Court order in 2018 for Busisiwe Mkhwebane, the current Public Protector, to be personally liable for 15% of the legal fees in the Absa/Bankorp case. In a 2017 report, the Public Protector tasked the Special Investigating Unit with recovering R1,2 billion from Absa Bank, related to a bailout for its subsidiary, Bankorp, by the South African Reserve Bank (SARB) in the mid-1990s. Furthermore, she ruled that Parliament should introduce a motion to amend the Constitution to change the SARB’s mandate to prioritise economic growth.

The Constitutional Court found that the Public Protector’s “entire model of investigation was flawed”, that she had been dishonest about her engagements during the investigation and that she had “put forward a number of falsehoods” in the course of litigation. Several justices described some of Mkhwebane’s reports as irrational, vague, nonsensical, contradictory and unconstitutional. Some justices made further incriminating findings and statements, going as far as to assert that she had acted in bad faith, was dishonest, biased, put together several falsehoods, lacked understanding of her constitutional duties and had lied under oath.

When this plethora of damning statements from such high authorities are considered, as well as the designated role of the position of Public Protector, one cannot help but question whether Mkhwebane’s conduct does not in fact resemble the exact antithesis of her duties. The Constitutional Court’s scathing judgement surely paints the picture that the current Public Protector is doing considerable damage to the reputation and status of her position – if not indeed threatening the same public she was appointed to serve and protect. On a foundational level, she should be a paragon of reliability, credibility, and integrity. Whether she possesses these required qualities has now come under serious scrutiny and doubt.

The office of Public Protector was specifically created as a crucial check and balance to combat the abuse of government power. It is a necessary counterweight in our constitutional democracy and, if compromised, may result in increased disfunction of the constitutional order.

Considering that the South African taxpayer funds her wages with the trust and reasonable expectation that she would fulfil her integral duties with the necessary care and diligence, it becomes clear how serious the implications of the Constitutional Court’s judgment are for our constitutional democracy.

The prospects of Mkhwebane being succeeded by a Public Protector of exemplary honesty, integrity and objectivity appears to be very slim, however. The position’s mandate of objectiveness has more often than not been ignored in appointments. Willie Spies of Hurter Spies Inc. rightly remarked that he is “not aware of another Chapter 9 institution with as many review applications against it.”

All things considered, this case provides fertile ground for fresh perspectives on and approaches to how our constitutional order should function, as well as how it should be kept in check. When the state noticeably fails in this regard, consideration of increased non-governmental constitutionalism becomes an imperative option up for discussion.

The time has come for civil society to take a firmer stand on the custodianship of the pillars of our constitutional order. Organisations like AfriForum have already taken the first steps in achieving such a paradigm shift, most notably through their campaigns to oppose the amendment of Section 25 of the Constitution. As Victor Hugo once said: “Nothing is as powerful as an idea whose time has come.”

Ernst van Zyl is a strategy and campaign officer at AfriForum, is a co-presenter on the Podlitiek podcast and host of the Stream of Consciousness live interview show on YouTube.