By Paul Ngobeni
Finance Minister Mboweni’s latest public attacks on the Public Protector are deeply troubling and raise serious questions about the commitment of the current ANC government to anti˗corruption and clean governance. These highly personal attacks are emblematic of an emerging pattern of politicians attacking the Public Protector for her rulings and remedial orders simply because they disagree with them— a pattern that is likely to continue throughout Ramaphosa’s presidency. This threatens our entire constitutional order and undermines the efficacy of a key corruption-busting institution, the Public Protector.
Our Constitutional Court observed that the office of the Public Protector was created to “strengthen constitutional democracy in the Republic” and is required to be independent and subject only to the Constitution and the law. It is required to be impartial and to exercise the powers and functions vested in it without fear, favour or prejudice. The Public Protector is pivotal to the facilitation of good governance in our constitutional dispensation.
The Court opined: “In appreciation of the high sensitivity and importance of its role, regard being had to the kind of complaints, institutions and personalities likely to be investigated, as with other Chapter Nine institutions, the Constitution guarantees the independence, impartiality, dignity and effectiveness of this institution as indispensable requirements for the proper execution of its mandate. The obligation to keep alive these essential requirements for functionality and the necessary impact is placed on organs of State. And the Public Protector is one of those deserving of this constitutionally-imposed assistance and protection. It is with this understanding that even the fact that the Public Protector was created, not by national legislation but by the supreme law, to strengthen our constitutional democracy, that its role and powers must be understood.” According to the Court, the Public Protector “..is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are. The Public Protector is one of the true crusaders and champions of anti˗corruption and clean governance.” Mboweni’s unwarranted personal attacks on the Public Protector render the entire anti˗corruption and clean governance rhetoric of the Ramaphosa government meaningless sloganeering.
Obviously, Minister Mboweni has a right to be critical of the Public Protector’s rulings or remedial orders. But that must be informed criticism on constitutional, rather than political or personal, grounds. Fear of personal attacks, public backlash, or personal vilification should not colour the Public Protector’s decision-making – she is entitled to constitutionally-imposed assistance and protection from our public officials, especially members if the executive branch.
The Public Protector’s only sin was that she found Mogajane the Director General of National Treasury, had failed to disclose a criminal conviction record on the Z83 application form he completed for the position and that this failure constituted impropriety or dishonesty, and amounted to improper conduct. As remedial measures, she recommended that, within 30 days of the report, the president should take appropriate action against Mogajane in terms of the Public Service Act for “blatantly and dishonestly” making a false representation of material facts in his Z83 form. The Act directs that the president is responsible for disciplinary steps and the implementation of relevant sanctions against a head of the department. The Act further enables the president to delegate to any minister any power conferred on the president, including the power to initiate disciplinary action against a Director-General as well as to affect the outcome thereof.
President Ramaphosa promptly delegated to Minister Pandor the power to initiate disciplinary action against Mogajane. According to the Presidency, once Pandor has fulfilled her role, Ramaphosa has delegated to Mboweni only the authority to implement the outcome of the disciplinary hearing, including, but not limited to, the implementation of the sanction pronounced by the chairperson of the hearing. Most critical, the President determined that Mboweni was prevented by the actual and perceived conflict of interest from instituting the envisaged disciplinary action against Mogajane. Ramaphosa stated: “The president is of the view that (Mboweni), who is required to take ownership of decisions made by his predecessor, may be conflicted in this situation and it would, therefore, not be appropriate to delegate the power to institute disciplinary actions against Mogajane to the current minister.“.
Despite the President’s public posture and purported compliance with the remedial orders of the Public Protector, Mboweni defiantly launched personal attacks on the Public Protector. Addressing journalists at a briefing ahead of the delivery of the budget speech in the National Assembly he responded to a question about Advocate Mkhwebane’s remedial action, by stating that he had “full confidence” in the staff at Treasury, including Mogajane, who he said is “very nice” and a “good Christian“. In a language clearly aimed at undermining the Public Protector, Mboweni declared: “I think the public protector has a problem. I’m saying this as strongly as I can, knowing fully well that the office of the public protector is a constitutional structure … but the incumbent [Mkhwebane] has a problem… I hope one day I can have a conversation with the incumbent without interfering, but just to advise. She has made a finding that Speedy Dondo [Mogajane] must be disciplined – he has a speeding fine. If I could take an opinion poll here, most of you have speeding fines.” Mboweni has shown unbridled contempt not only for the Constitution, the Public Protector, Cabinet and the President.
Despite the President ’s determination that Mboweni suffers from a conflict of interest and that he is not the proper person to decide on instituting disciplinary measures against Mogajane, Mboweni ignored that directive and proceeded to interfere with or pre-empt Minister Pandor’s work in that regard. By making prejudicial remarks favourable to Mogajane, the putative wrongdoer, on a matter pending before another Minister Mboweni has acted in a “manner that is inconsistent with” his office and has compounded the matter by exposing himself to a situation involving the risk of a conflict between his official responsibilities and private interests all in violation of section 96(1), (2)(b) and (c) of the Constitution. The President would be an accomplice if he knowingly allows Mboweni any further involvement in the matter after he publicly expressed his bias in favour of the “good Christian” Mogajane.
Astoundingly, Mboweni makes an unbridled appeal to religious bigotry and refers to Mogajane as a “good Christian” whose self-admitted criminal conviction must be ignored based on his Christian beliefs. It beggars the question of whether Mboweni’s charitable views towards “good Christians” includes Hindus, Moslems, Atheists, Communists and others who do not share his Christian faith. Mboweni sidesteps the pivotal issue of whether under our criminal law Mogajane has a record of criminal conviction, and if so, whether he had an ethical obligation to disclose the said criminal record on the Z83 application form he completed for the position of Director-General at the National Treasury? Court records confirm beyond any doubt that Mogajane was found guilty of contravening the Road Traffic Act in Kempton Park in 2011 by engaging in “reckless and negligent driving” and earned himself a criminal conviction record when he paid an admission of guilt fine. Mboweni acknowledges this conviction record but downplays its seriousness by claiming it is only a “speeding fine” without interrogating how many innocent victims of fatal traffic accidents lose their lives through drivers like Mogajane who engage in “reckless and negligent driving.” Further, Mboweni displays an astonishing level of ignorance regarding competitiveness processes in the hiring of senior civil servants as required by Section 195 of the Constitution and the Public Service Act.
As a senior member of the public service Mogajane, the DG is bound, in his management and administration of the Treasury, by the basic values that govern the public service, contained in section 195(1) of the Constitution. That Section requires the promotion and maintenance of a ‘high standard of professional ethics’;( Section 195(1)(a)) the promotion of ‘efficient, economic and effective use of resources’;(Section 195(1)(b)) the accountability of public administration;( Section 195(1)(f)) the cultivation of ‘good human-resource management’; and ‘broadly representative’ public administration ‘with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation’. (Section 195(1)(i)).
Mogajane’s failure to disclose negative information might give him a competitive edge and unfair advantage over conscientious candidates who dutifully disclose warts and all. The Public Protector appropriately found that Mr Mogajane’s failure to disclose constituted impropriety or dishonesty, and amounted to improper conduct. It is incomprehensible how Mboweni arrogates to himself the right to denounce and challenge Public Protector’s orders directed at the President in circumstances where the latter has already agreed to comply.
Mboweni’s irrelevant ramblings and arrogance were apparent when he quipped that if he had to take a poll of the journalists present at his press briefing, many of them would have speeding fines. Since when have opinion polls been relied upon as criteria for employee performance or evidence of criminal convictions? In Mboweni’s myopic and absurd view, the more rampant particular criminal offences are, the more society is entitled to regard them as benign and trivial “fines” not worthy of disclosure on job applications. In that way hiring in the civil service would be a lottery conducted in the dark and would depend on how candidates can skillfully conceal their criminal conviction records and on personal favouritism and nepotism.
Mboweni violates all of the above provisions of the Executive Members’ Ethics Act, 1998. He cannot be said to be performing his duties and exercising his powers diligently and honestly when he was expressly not assigned those duties due to a conflict of interest. He usurps functions the President had expressly assigned to another Minister after finding Mboweni to be conflicted. He usurped another Minister’s job and rubbishes it by publicly vindicating a person she was supposed to put through a disciplinary process. Mboweni could not have acted in good faith and in the best interest of good governance when he trivialized a criminal conviction, undermined a Public Protector’s sound findings and attempted to sabotage a pending disciplinary process through prejudicial remarks vindicating the errant employee. Objectively, Mboweni cannot be said have acted “in all respects in a manner that is consistent with the integrity of their office or the government.” There is no integrity in violating the rule of law, attacking the Public Protector or undermining court judgments and replacing them with decisions based on opinion polls of journalists. Any government allowing these absurdities is bound to perpetuate corrupt practices.
But a more dangerous aspect of Mboweni’s bizarre assertions is the threat it poses to the decisional independence of the Public Protector. Decisional independence allows Public Protectors, judges and independent adjudicators to make decisions freely, without being swayed by concern for political or career consequences, or for public backlash. Mboweni implies that our Public Protector consults opinion pollsters before she performs her constitutional duty. That would be unlawful. As Justice Chaskalson explained in S v. Makwanyane 1995:
‘If public opinion were to be decisive, there would be no need for constitutional adjudication. The protection of rights could be left to Parliament, which has a mandate from the public and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution.’
Finally, the much-touted review application by Mboweni is baseless, a waste of public funds and is bound to fail. The Supreme Court of Appeal in Minister of Home Affairs v. The Public Protector 9308/2017)(2018) ZASCA 15 (15 March 2018) expressly ruled that 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.” Mboweni’s plaints about the separation of powers are all doomed to fail.