Public Protector deserves apology when Parliament operates as a Kangaroo court

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To its undying shame, Parliament’s Portfolio Committee on Justice and Correctional Services (“JCSP”) have been hoodwinked by the DA’s Steenhuisen into a farcical enquiry to impeach the Public Protector. Predictably, revenge and racist disparate treatment are the motivating factors for the DA – it was the only party in Parliament that vehemently opposed the appointment of our Public Protector.  When its plans to derail the appointment failed, the DA intensified its vitriolic rhetoric and denigrated the Public Protector by labelling her “a spy.” Because of the DA’s continued mischief, the Public Protector recently laid a criminal charge against a Senior DA member for leaking a confidential report by the Public Protector’s office. Cumulatively, all these events have contributed to the DA’s evolving strategy of abusing its privileges in Parliament’s Committees to target the Public Protector for removal and to besmirch her good name.

Consistent with its racist myopia, the DA has conjured up an unworkable, clearly unlawful litmus test for Public Protector “incompetence” which has been soundly rejected by our judiciary. From the DA’s vantage point, every adverse judicial comment about the Public Protector constitutes evidence of alleged “incompetence” warranting her removal from office.  It matters not that such an absurd rule has been rejected even for the judiciary – judges cannot be disciplined or removed from office based solely on the merits of the judgments or orders they issue no matter how wrongful!

That is why Section 15 of the JSC Act stipulates that judicial misconduct complaints against judges that are “solely related to the merits of a judgment or order” are subject to a mandatory dismissal. Likewise, a complaint, enquiry and threat of removal against the Public Protector based solely on the merits of her decision or remedial orders are untenable as it undermines decisional independence.

The unabashedly racist criteria adopted by the DA has far-reaching impact. Two white judges who issued the adverse judgment reviewing and setting aside the Public Protector’s remedial orders were themselves subject to criticism by the SCA and their judgments reversed. Judge Murphy’s judgments were reversed on two separate occasions involving the NPA and the Public Protector because of his limited understanding of administrative law (PAJA) principles.  Similarly, Judge Cynthia Pretorius’ infamous judgment regarding the rampaging SANDF soldiers who violently fought the police at the Union Buildings was reversed because of her bizarre suggestion that the Minister of Defence needed the permission of the labour union before she could fire the errant soldiers.  No one has ever suggested that these same white judges who harshly criticized the Public Protector were “incompetent” or deserved removal from the judiciary based solely on the merits of their judgments or criticism by the higher courts.

Sadly, the ruling ANC has not only proven itself woefully spineless and incompetent but it has equally contributed to the polluted atmosphere where unbridled political attacks against the Public Protector continue unabated.

On 6 March, former JCSP Committee Chairperson Dr. Motshekga (ANC) presided over a meeting to discuss the Public Protector’s “report into the Vrede Dairy Farm in the Free State; the adverse findings against her in two separate court judgments in the Gauteng High Court, which set aside aspects of her remedial action in the ABSA matter and the order to Parliament to amend the Constitution to change the South African Reserve Bank mandate.”  Here highly pejorative and bigoted remarks were directed at the Public Protector.  As a “whole the Committee expressed disappointment, frustration and even anger at the responses of the Public Protector and the manner in which she conducted the Vrede investigation.” Members said her report “had failed to investigate politicians and the Gupta family who are at the centre of the Vrede scandal…The Public Protector …had dismally failed in that.” In clear violation of the Constitution’s provisions guaranteeing the Public Protector broader powers to determine the scope and methods of her investigations, the Committee members purported to berate her for “failing to consult the intended beneficiaries of the project” and opined that such failure is “at odds with her constitutional duty.

Further, the Committee opined that it “is unacceptable for the Public Protector to state that personal cost orders undermine her independence.  For far too long public officials have adopted an unduly combative attitude to litigation and it is time they personally bear the costs of the taxpayer.” The Public Protector was “asked by some members if she could still reasonably expect people to believe that she is a fit and proper person to occupy her Office. She should consider doing the honourable thing and should resign, just as the former President had done.” This was a case of self-declared bias and prejudgment on the part of the Committee which renders it unfit to judge the matter.

Dr. Motshekga failed to understand clear rules of the National Assembly which stood firmly against the circus-like charade being orchestrated by the DA. He blithely ignored two simple rules of Parliament through which he could have defended the independence and integrity of the Public Protector by dismissing the Steenhuisen complaint without a hearing.  Rule 88 of the National Assembly entitled: “Reflections upon judges and certain other holders of public office” is very explicit and categorically states that: “No member may reflect upon the competence or integrity of a judge of a superior court, the holder of a public office in a state institution supporting constitutional democracy referred to in Section 194 of the Constitution, or any other holder of an office (other than a member of the government) whose removal from such office is dependent upon a decision of the House, except upon a separate substantive motion in the House presenting clearly formulated and properly substantiated charges which, if true, would in the opinion of the Speaker prima facie warrant such a decision.”

Although no such separate substantive motion had been presented in the House “presenting clearly formulated and properly substantiated charges” the good Dr. Motshekga simply allowed the vituperative attacks on the Public Protector to continue with reckless abandon.  Motshekga also violated NA Rule 89 governing “Matters sub judice.”  The rule states unequivocally that: “No member may reflect upon the merits of any matter on which a judicial decision in a court of law is pending.” Motshekga knew that all the matters being discussed by the Committee were sub judice – the Public Protector had a pending appeal in the SCA and her application for direct access was granted by the Constitutional Court.   That should have ended any discussion on the merits of these matters that were before our courts.

Further, the JCSP Committee members have in the most shameless and dishonest manner continued to distort the legal cases involving the Public Protector and to hawk a lie to the public. On 15 March 2018, the Supreme Court of Appeal in Minister of Home Affairs v. The Public Protector 9308/2017) (2018) ZASCA 15 (15 March 2018) expressly overruled the premise of the two cases the DA used in attacking the Public Protector. The SCA poignantly ruled that a PAJA review is available only if the impugned action is “administrative action” as defined in the PAJA. The SCA specifically overruled the judgment of Murphy J (South African Reserve Bank v Public Protector & Others 2017 (6) SA 198 (GP; and the Pretorius judgment in Absa Bank Limited & Others (2018) ZAGPHC where both judgments erroneously concluded that the remedial action ordered by the Public Protector was subject to review in terms of the PAJA. The SCA vehemently disagreed. In the SCA’s view, the Public Protector’s function “is not to administer but to investigate, report on and remedy maladministration.”  The DA has assiduously maintained the pretence and ignored the extant SCA judgment to obfuscate its pure political agenda. Sadly, the ANC has sheepishly tagged along.

The Chairperson further allowed the DA to perpetuate another legal fraud regarding the Public Protector’s “Vrede dairy” investigation. The SCA effectively ruled that the National Assembly has no power to override or micro-manage the Public Protector’s investigation.  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.”   Obviously, the politically driven clamour to dictate to the Public Protector as to the scope and methods of her investigation amounts to unlawful usurpation of her constitutional powers. The Committee’s disagreement with the methods and scope of the Public Protector’s investigation is not a lawful basis for a removal enquiry.

Clearly, the unbridled bigotry by the Committee coupled with its deliberate disregard of the Constitution and the rules of the National Assembly have irreparably destroyed the atmosphere for a fair hearing on the matter. The ANC-dominated committee’s administrative incompetence further prejudiced the Public Protector’s position and increased the vitriol against her. The Public Protector’s prompt written response was duly submitted according to the Committee’s deadline. Inexplicably, the Chairperson allegedly failed to distribute the said response to the Committee members until 11:00 pm on the night before the hearing scheduled for Wednesday 22 August 2018. That gave the DA an undeserved platform to further rubbish the Public Protector.

The DA disingenuously suggested that all these dilatory happenings were reflective of the incompetence of the Public Protector who submitted her late responses on the eleventh hour. When the newspapers falsely reported that the Public Protector simply failed to attend the hearing without a valid explanation, the Chairperson maintained a stony silence and failed to disclose that the Public Protector was validly excused from attending. When the political parties savaged the Public Protector, no clarification, explanation or cogent defence was forthcoming from the same Chairperson Motshekga or the ANC caucus.

The Public Protector’s security of tenure and her decisional independence are firmly anchored under our Constitution. The ironclad rule is that a judge whose decision has been overturned or was subject to scathing criticism by the higher court cannot suffer retaliation or threat of removal based simply on the judgment later proven to be erroneous. Decision making independence is critical to assure litigants that judicial results are as free from external influence as possible. Like judges, Public Protectors cannot function effectively if their decisions are viewed as the product of threats of removal by the National Assembly or lobbying by some with ulterior purposes. Public confidence in the unbiased nature of the findings or the Public Protector’s remedial orders is critical. A Committee’s interests in political accountability must never be allowed to trump any possibility of complete Public Protector decisional independence.

The Constitution prescribes an unwieldy and cumbersome Public Protector removal process akin to that for judges. The Constitution (Section 194) envisages a bifurcated two stage removal process. The grounds for removal are very specific and it is clear that the Public Protector “may be removed from office only on—(a) the ground of misconduct, incapacity or incompetence.” At the first stage, an unbiased and impartial committee of the National Assembly must make a finding to the effect that the Public Protector is guilty of “misconduct, incapacity or incompetence” as enumerated in the Constitution. At the second stage, there must be “the adoption by the Assembly of a resolution calling for [the Public Protector’s] removal from office.” Just like judges, the National Assembly’s resolution must be adopted with a supporting vote of at least two-thirds of its members.

Here the process has been hopelessly compromised, completely sabotaged, polluted and contaminated at the initial stage. The Committee publicly condemned the Public Protector, declared her guilty and demanded her resignation without a due process hearing. Will the ANC of Nkosi Albert Luthuli, Nelson Mandela and Walter Sisulu have the courage of its conviction and offer a public apology to Advocate Mkhwebane for the travesty, the gross violations of her rights and her dignity!

Advocate Paul M. Ngobeni

Legal Analyst