The Powers of the Public Protector.

22 July 2019

Now that the high jinks of Busisiwe Mkhwebane, our current Public Protector, have been characterised as both dishonest and indicative of her incompetence by our highest court and by our long-suffering and chronically persecuted Minister of Public Enterprises, Pravin Gordhan, it is an opportune time to take stock of what should be and what actually is happening on her watch.

Those who drafted the Constitution were astute to recognise that a massive sea-change would follow its adoption and implementation. The old SA was a parliamentary sovereignty in which the role of parliament was supreme. The new SA is a constitutional democracy, in which the Constitution is supreme. Laws or conduct that are inconsistent with the Constitution are liable to be struck down by the independent and impartial courts of the land as invalid. That which is illegal, invalid, irrational and generally unconstitutional has, with monotonous regularity, been struck down in court at the instance of aggrieved parties who turn to the Constitutional Court to protect their rights and the inviolable character of the supreme law.

The people needed help, back in 1994, to take on board the change between an authoritarian regime which forced its will on the masses and the new participative democracy under the rule of law. The founders of the Constitution created six new institutions to strengthen constitutional democracy in SA. They are collectively called “State Institutions supporting constitutional democracy” and they are all guaranteed their independence. In turn they must be “impartial and must exercise their powers and perform their functions without fear, favour or prejudice” on the basis that they are “subject only to the Constitution and the law”. The state must assist and protect these institutions to ensure their “independence, impartiality, dignity and effectiveness”. Support for, and popularisation of, the notions of constitutional democracy, especially its benefits for ordinary folk, are the stock in trade of the Chapter Nine Institutions.

The Public Protector is one of those institutions which has a threefold constitutional remit: firstly to investigate any conduct of state affairs or in the public administration that is alleged or suspected to be improper or to result in any impropriety or injustice; secondly to report on that conduct and thirdly to “take appropriate remedial action”.

National legislation prescribes that the Public Protector polices the Executive Members Ethics Act and the Public Protector Act itself spells out the powers of the Public Protector in greater detail than the constitutional provisions summarised above.

The power to take appropriate remedial action came under the scrutiny of the Constitutional Court in the Nkandla matter in which unauthorised and illegal expenditure of public money at the home of then president Jacob Zuma on non-security upgrades was challenged and came under investigation as a breach of the code of conduct which binds the executive branch of government.

It was suggested on behalf of Zuma that the power to take appropriate remedial action was not binding on him and that the findings made against him, in essence to pay back the money spent of non-security upgrades at Nkandla, were in the nature of a recommendation by the Public Protector.

By the time the matter reached the Constitutional Court on appeal, with the DA, EFF, Corruption Watch as amicus curiae and the Public Protector herself lined up against Zuma, he blinked and threw in the towel, conceding the binding effect of the remedial action so appropriately taken by the Public Protector. Although there was no contest on the topic, the Court resoundingly and unanimously chose to deliver a reasoned judgment confirming in essence that the words in the Constitution mean exactly what they say. The Public Protector has the power to take appropriate remedial action.

The effect of this power is wide-ranging even though the remit of the Public Protector is limited to affairs of state (including the ethics of the executive) and the conduct of the public administration. She may not investigate court decisions, but any other alleged impropriety or prejudice in the conduct of state affairs or in the public administration is fair game for her teams of investigators around the country. Her remedial action must always be appropriate – ordering a change in the Constitution or asking national law-makers to change the regulation of horse-racing, a provincial competence, would clearly not be appropriate.

Any implicated party who feels aggrieved by the directives given by the Public Protector in taking appropriate remedial action has to take her on judicial review and seek a temporary interdict pending the review in order to avoid the remedial path chosen by the Public Protector. A review is not an appeal. There is no appeal procedure directly applicable to the activities of the Public Protector. A review is aimed at testing the rationality of the remedial action required. A narrow inquiry into the presence or absence of rationality in the report that supports the remedial action taken is the upshot of the cases taken on review, although, as in the Nkandla matter, the High Court review findings are possibly the subject matter of an appeal to a higher court.

It has been argued that it is wrong to give the Public Protector binding powers and that her remedial action should be regarded as no more than a recommendation, leaving the implicated party the choice of taking it or leaving it. This suggestion in effect robs the Public Protector of the bite that she is given in our supreme law, the Constitution. An amendment of the Constitution, so trenchantly interpreted in the Nkandla judgment, is a hazardous and ill-advised path to tread.

A practical problem that has arisen, in connection with the reviewing of remedial action required by the Public Protector, is that there are long delays in court processes and possible appeals in relation to contested reports of the Public Protector. These delays do give rise to valid concerns, but they are best addressed by utilising case management techniques now available to the judiciary. These techniques enable important matters to be accorded accelerated hearings in open court, be it in the judicial review or in any possible appeals. The sting of the delay factor can be addressed and alleviated using strict timetables to shorten the delays of the necessary process. It is most welcome that the President has announced that he will seek an urgent review of the findings made against him on 19 July, 2019.

The courts have not been given any direct powers in relation to removing an errant person in office from the office of Public Protector. The Constitution, ever mindful of the protection of the independence of Chapter Nine functionaries, requires proof of misconduct, incapacity or incompetence to the satisfaction of a committee of the National Assembly and the adoption, by a two thirds majority, of a resolution of the full Assembly. The President must, upon the adoption of the resolution, remove the person concerned from office.

In these circumstances it is plain that for so long as more than a third of the members of the National Assembly are unwilling to adopt a resolution that the Public Protector be removed from office, she will not be removed. It is up to the ANC to decide where it stands on the issues around the honesty and competence of the current Public Protector. Its 57% of the seats in the National Assembly is decisive. Given the findings of the Court in the SA Reserve Bank matter, it would be irrational, and therefore reviewable for any members of the National Assembly to vote against a motion to remove the Public Protector from office.

The DA has long contended that our current Public Protector is incompetent. It has an array of court judgments that support its stance. Accountability Now has long contended that the Public Protector is dishonest, and it has a paper trail that suggests that its complaint is well founded. Now that there is a Constitutional Court finding that the Public Protector is both dishonest and incompetent, it is up to the ANC caucus in the National Assembly to decide whether it can, in all good conscience and with due regard to its own accountability, continue to shelter the Public Protector from the consequences of the questionable activities in which she engages. As the Public Protector has finally been found to be dishonest (serious misconduct in any advocate which should lead to disbarment when perjury is involved) and lacking in competence, she is incapable of fulfilling the constitutional mandate of her office in an independent, impartial and effective way and it is the duty of the National Assembly to resolve that she be removed from office. Dereliction of duty by politicians is not an option in the post-Nkandla judgment era.

The blatantly contemptuous continued state of denial by the Public Protector in her reaction to the Constitutional Court judgment and her assertion that its majority has created a bad precedent is simply further evidence of her lack of proper insight as she is bound by the decision of the majority, a decision which, on her track record will bankrupt her in a short period as other litigants already seek punitive costs orders against her. The Public Protector is a loose cannon rolling around on the upper deck of the ship of state needs to be thrown overboard now, before it does any more damage. Properly advised the Public Protector will tender her resignation forthwith. It is also incumbent upon the Legal Practice Council to investigate whether or not she is a fit and proper person to be an advocate. Our law requires that all advocates act with probity and integrity at all times.

By Paul Hoffman SC director of Accountability Now, 22 July, 2019