- By: Paul Ngobeni
CAN JUSTICE BE DONE AMID EFFORTS TO INTIMIDATE AND REMOVE OUR PUBLIC PROTECTOR?
The Vrede/Estina Dairy Project judgment that Public Protector failed in her duties to investigate and report on the Vrede dairy project in the Free State will forever live in infamy. Without a doubt, our country is blessed with an extraordinary group of dedicated judges doing their level best to dispense justice to those appearing before them.
That independent judiciary does not allow their personal background, gender, prejudices, sympathies to sway their decision in favour of, or against, parties before the court. That judiciary heeds the admonition of Chief Justice Mogoeng against allowing themselves to be captured, against the temptation to be “celebrity” judges, and against being lured by manipulative praises from politicians, analysts or the media.
Sadly, there are exceptions like Judge Tolmay who allow vicissitudes of political controversy, their policy preferences, shaped by an amalgam of factors that include their race, and most importantly, ideology or partisanship to determine court judgments they issue. A plethora of legal errors in Tolmay’s judgment makes it unlikely that an appeal court will ever countenance such a travesty.
By her own admission, Judge Tolmay had initially held back her judgment in the Estina Vrede Dairymatter pending the judgment of the Concourt. But she now advances a feeble explanation for expediting the matter. She asserts that “seeing the controversy surrounding the Project, and in order to prevent further delay in the matter, this Court deemed it in the interest of justice to deliver judgment on the merits and to postpone the judgment relating to costs until the CC has handed down its judgment in the Absa Bank matter.“
Most telling, she offers no explanation of why the controversy surrounding the project makes a decision imperative now. If a judicious decision was made to await the judgment of the Concourt for almost seven months what triggered Tolmay’s judicial somersault now? Certainly not the Estina Dairy “controversy” which has existed since 2012 and has seen the NPA suffer a humiliating defeat in the courts and withdrawal of criminal charges against accused Gupta associates. Certainly not the interest of justice or fealty to the rule of law.
Lest we are fooled, the litigant here is the Democrat Alliance, a political party that has targeted the Public Protector for impeachment and removal. By taking judicial notice of a “controversy surrounding the project” Tolmay knowingly or unwittingly aligned herself with a politically driven narrative and agenda to ensure that Public Protector is condemned in court judgments and that the newly sworn parliament is seized with the matter of the impeachment of her removal. That is a damnable and disconcerting instance of judges being unashamedly transformed into mere echo chambers and willing instruments of political parties.
Unfortunately, in a rush to issue her judgment Tolmay overlooked and transgressed the principle of stare decisis. This is a juridical command to the courts to respect decision already made in a given area of the law. The practical application of the principle of stare decisis is that courts are bound by their previous judicial decisions, as well as decisions of the courts superior to them. In other words, a court must follow the decisions of the courts superior to it even if such decisions are clearly wrong. The statement of principle by Didcott J in Credex Finance (Pty) Ltd v Kuhn 1977 (3) SA 482 (N) is in point:
“The doctrine of judicial precedent would be subverted if judicial officers, of their own accord or at the instance of litigants were to refuse to follow decisions binding on them in the hope that appellate tribunals with the power to do so might be persuaded to reverse the decisions and thus to vindicate them ex post facto. Such a course cannot be tolerated.“
The Concourt, in Camps Bay Ratepayers’ and Residents’ Association & another v Harrison & another 2011 (4) SA 42 (CC), paras 28-30, expressed itself unambiguously about observance by courts of the maxim stare decisis or the doctrine of precedent. Brand AJ, in delivering the unanimous judgment of the court said:
“ Stare decisis is therefore not simply a matter of respect for courts of higher authority. It is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution. To deviate from this rule is to invite legal chaos.“
In total disregard of the rule of law, Tolmay blithely or disingenuously ignored a controlling SCA judgment, Minister of Home Affairs and Another v Public Protector of the Republic of South Africa, which elaborated on the unbridled discretion of the Public Protector in the investigation of complaints. The SCA stated “…,the Public Protector is given broad discretionary powers as to what complaints to accept, what allegations of maladministration to investigate, how to investigate them and what remedial action to order –as close as one can get to a free hand to fulfil the mandate of the Constitution.”
It is quite revealing that Tolmay assiduously makes no reference to this recent SCA judgment at all and proceeds from a premise rejected by that same court. Instead, she appears to be utilizing judicial review and her disagreement with the methods and scope of the Public Protector’s investigation as a basis for accusing her of unconstitutional behaviour and ulterior motives.
That is wrong as the Public Protector has exclusive “free hand to fulfil the mandate of the Constitution” and cannot be impeded, second-guessed or interfered with in the performance of her duties. It does not avail the judge to say that it would have been better or wiser for the Public Protector to have exercised her discretion differently. That is not the test on review.
Another glaring error in Tolmay’s judgment lies in the manner she interpreted the “opt-out” provisions of s 6(3) of the Public Protector Act. According to the SCA in Home Affairs, this section “provides an opt-out for the Public that section… it allows the Public Protector to decline to take a complaint that is within her do so. The acceptance of a complaint, when the circumstances envisaged by s 6(3) are present, is the default position.” Again, Judge Tolmay rejected the SCA ruling and manufactured her own rules by stating:
 This is not a proper reading of the constitutional and statutory provisions contained in the legislation. The language used in the Constitution and the PP Act in describing the PP’s powers and functions make it clear that the investigative power vested in the PP is coupled with a duty to exercise that power. It is accordingly clear from a proper reading of the Constitution and the PP Act, that the PP does not have such wide discretion, as she claimed, to refuse to investigate a complaint that falls within her jurisdiction.
Tolmay appears oblivious to the fact that her High Court “must follow the decisions of the courts superior to it even if such decisions are clearly wrong.” But there is more to Tolmay’s manifest errors of law. Tolmay admitted that the DA filed complaints the extant complaints on12 September 2013, 28 March 2014 and 10 May 2016, all about the Estina Dairy subject matter. Implicitly, her judgment gives any complainant the right to serially split her complaints on the same subject matter and file them seriatim requiring the Public Protector to jump to investigate each time and in a manner preferred by that complainant. That is not the law. In light of the broad discretion afforded the Public Protector to determine which complaints or matters should be prioritized and the presumption that the Public Protector exercised that discretion in good faith it is incomprehensible that a judge may hold such views.
One cannot have a judicially crafted iron-clad rule that imposes the duty to investigate every single complaint or series of complaints emanating from the same complainant. Moreover, the Public Protector’s conscious exercise of some selectivity in complaints prioritised for investigation is not in itself a constitutional violation so long as the selection was not deliberately based upon an unjustifiable standard such as political affiliation, race, religion, or other arbitrary classification.
Tolmay also committed incomprehensible judicial overreach when she found that an exercise of public power is constitutionally invalid, declared the Report invalid, reviewed and set it aside and then claimed that the “specific circumstances in this case” made it not appropriate to refer the matter back to Public Protector. Contrary to the narrative of propagandists, the Public Protector had not abandoned the Estina investigation. As recently as April 2019, the Public Protector was busy meeting with emerging black farmers who were meant to benefit from the Vrede dairy farming project as part of her ongoing investigation. That is nowhere in Tolmay’s biased judgment.
The ruling is not surprising as Judge Tolmay is no stranger to utilizing the court judgments to advance populist causes untethered to the constitution and the rule of law. In a 2017 case, Tolmay caved in to the well-choreographed lobbying by SA Hunters and other gun fanatics when she declared Sections 24 and 28 of the Firearms Control Act unconstitutional. She ignored the unacceptable levels of gun violence in our country and found the two provisions to be constitutionally invalid on three grounds: (i) the provisions were irrational and vague; (ii) an earlier interim order, which applied to gun-owners who do not have to apply for re-licensing, amounted to unequal treatment and unfair discrimination in terms of section 9 of the Constitution; and (iii) the absence of a proper procedure for surrendering a firearm after the effluxion of the licence period violated the right to property in terms of section 25 of the Constitution. The Concourt had no difficulty in rejecting Tolmay’s absurd reasoning and exposing her deficient understanding of the law. It rejected the argument that the Act was irrational and vague. On the contrary, the relevant provisions cannot be clearer in that they set out the exact procedure for holding and renewing firearm licences.
Moreover, the constitutional invalidity of the licencing scheme had not been challenged, nor had the criminalisation of unlawful possession upon termination of the licence been challenged. Once that is accepted, it is clear that the licencing process is not irrational. It exists in order to achieve lawful possession. There is nothing irrational about non-compliance with the licensing process leading to unlawful possession and criminalisation. Further, Tolmay did not understand that any differentiation between people does not arise from the Act itself, but from an earlier interim order.
For the Act to be constitutionally invalid, the alleged inequality must stem from the provisions of the Act itself. The differentiation is not arbitrary and has a rational basis thus the equality challenge must fail. Lastly, the Concourt found no merit in the argument that the Act amounted to an unlawful deprivation of property. No challenge was brought against the sections criminalising unlawful possession in the matter. In elevating the section 25 rights of gun owners over victims of gun violence Tolmay failed to appreciate that relinquishing some incidents of ownership in a potentially life-threatening firearm is not too great a price to pay for enhancing the constitutional rights to life and bodily integrity.
There is a paradox here. Tolmay, the white paragon of judicial virtue has had her only significant decision reversed in its entirety by the Concourt. But she is white and clothed with a presumption of competence. But in the eyes of the white-dominated CASAC, the DA and their self-hating non-white puppets, court rulings criticizing a black professional such as the Public Protector ineluctably points to incompetence or malfeasance and must be career-ending. The Concourt’s rejection of Tolmay’s flawed judgment has never been used by anyone to question Tolmay’s suitability as a judge. Members of the public including DA members have the right to criticize the Public Protector but such criticism cannot emanate from retaliatory motives, dislike or discrimination on the basis of her race.
If the Public Protector and others whose independence is constitutionally guaranteed cannot be threatened with removal based on the merits of their decisions, then it follows that the unprincipled threats of removal against the Public Protector must be denounced as unlawful and discriminatory. The suspicious timing of judicial decisions and other manifestations of political mobilization of our judiciary shall be subjected to hawk-like monitoring without fear or favour.