By Paul Ngobeni
President Ramaphosa has spoken ad nauseum about the need to restore the integrity and credibility of public institutions charged with very critical mandates in our constitutional democracy. Unfortunately, some of his Ministers have their own unique ideas about wreaking havoc on these important institutions. A case in point is the Minister of the State Security who has employed the State Security Agency (SSA) to intimidate and interfere with the work of the Office of the Public Protector. She is unashamedly utilizing the apartheid-era legislation, the Protection of Information Act 1982 to prevent the Public Protector’s office from carrying on an investigation of a rogue intelligence unit aimed at exposing certain alleged corrupt activity, unauthorized spying, unlawful expenditure and the misuse of public funds. This calculated move is designed to gut the Public Protector’s ability to access ‘classified’ state information, protect whistleblowers and thus to do her core constitutional job.
Published stories suggest that the SSA, under Minister Letsatsi-Duba, has filed criminal charges against the Public Protector for the innocuous sin of correctly receiving information which confirms the existence of the Rogue Intelligence Unit at South African Revenue Services (SARS), during Pravin Gordhan’s tenure as Commissioner. The constitutional incompetence of the Minister of State Security is mind-boggling but her ignorance about the scope and nature of her own job as a minister dealing with intelligence matters and the Public Protector is frightening.
Certainly, the Minister must be aware of the most critical documents of democratic intelligence dispensation, namely the White Paper on Intelligence of 1995. It describes purpose of intelligence in democratic South Africa at Paragraph 3.2.3 as follows: “In the modern, post-Cold War world, intelligence to be relevant must serve the following purposes: to provide the policy-makers, timeous, critical and sometimes unique information to warn them of potential risks and dangers; to identify opportunities in the international environment, through assessing real or potential competitors’ intentions and capabilities; to assist good governance, through providing honest critical, intelligence that highlights the weaknesses and errors of government. As guardians of peace, democracy and the constitution, intelligence services should tell government what they ought to know and not what they want to know.”
It also describes the Mission of Intelligence in Paragraph 3.2.4 as being: “… to provide evaluated information with the following responsibilities in mind: the safeguarding of the Constitution and upholding of the individual rights as outlined in (Bill of Rights) contained in the Constitution; the promotion of the interrelated elements of security, stability, cooperation and development, both within South Africa and in relation to Southern Africa; the achievement of national prosperity whilst making an active contribution to global peace and other globally defined priorities for the well-being of humankind; and the promotion of South Africa’s ability to face foreign threats and to enhance its competitiveness in a dynamic world.” It is baffling how the State Security Minister can manipulate state institutions to intimidate, threaten, coerce and cower into silence the Public Protector whose constitutional duty is to ferret out corruption and ensure good governance. Simply, the Public Protector is investigating legitimate complaints on whether there was an illegal intelligence unit within SARS in violation of Section 209 of the Constitution. It is alleged that the unit was established at SARS under the leadership of Pravin Gordhan who fervently supported the current ANC leadership and that explains why the Minister is hell-bent on preventing the Public Protector’s investigation through juvenile antics including threats of arrest and criminal prosecution. It is simply unpardonable that a minister charged with the responsibility “to assist good governance, through providing honest critical, intelligence that highlights the weaknesses and errors of government” would seek to threaten, frustrate and sabotage the Public Protector’s constitutional duty through apartheid-style tactics. The odious legacy of ANC factional squabbles and nasty fall-out from the succession battles cannot be allowed to hobble the mission of a key corruption-busting constitutional institution, the Public Protector.
The hypocrisy and intellectual dishonesty of the Minister and SSA is laid bare for all to see. First, we all know that Advocate Mkhwebane possesses the requisite level of “top secret clearance” to do the Public protector’s job. During the 2017 interviews of the 14 candidates vying to fill former Public Protector Madonsela’s position, the SSA informed the ad hoc committee tasked with finding Madonsela’s replacement that it questioned Deputy Public Protector Malunga’s qualification for the position as it claimed Malunga does not have the required security clearance to get the Public Protector job. It asserted that Malunga was only qualified for confidential, and not top secret clearance. MPs were told that “top secret clearance” was needed to do the Public Protector’s job although no mention of this was contained in the Public Protector Act. Why must we now be so paranoid to believe that the duly appointed person with “top secret clearance” would suddenly not handle security-sensitive information responsibly? Certainly, there are ulterior motives behind the SSA or Minister’s flip-flopping now that the Public Protector is in possession of documents seemingly implicating the Minister’s buddies.
Second, the perverse logic and sinister motives of the Minister are revealed because the Public Protector’s only sin was to receive the leaked document already in possession of reporters from Noseweek, a magazine, which published its contents with reckless abandon. Strangely, the minister’s only target and obsession is the Public Protector precisely because she is a fearless crusader for democracy and clean governance. Predictably those who shield corrupt practices seek to squirrel away information and maintain an iron-clad veil of secrecy under the pretext of safeguarding state security. They are dead wrong. As the Supreme Court of Appeal eloquently stated in its judgment in The President of the Republic of South Africa and Others v M & G Media Ltd(2011) (2) SA 1 (SCA): ‘Open and transparent government and a free flow of information concerning the affairs of the state is the lifeblood of democracy.’
Only those responsible for keeping secrets should be prosecuted for leaks – it was a sacred duty of her ill-disciplined SSA agents to safeguard the alleged state secrets and they failed miserably. In a twisted logic the Minister believes that criminal prosecution, rather than securing sensitive information at source would be the panacea for the pervasive SSA culture of leaking state secrets. She naively believes that visiting the responsibility and severe consequences on the Public Protector for possession or disclosure of the said classified information would strengthen our democracy. As the Concourt reminded us, complaints are lodged with the Public Protector “to cure incidents of impropriety, prejudice, unlawful enrichment or corruption in government circles. This is done not only to observe the constitutional values and principles necessary to ensure that the “efficient, economic and effective use of resources [is] promoted”, that accountability finds expression, but also that high standards of professional ethics are promoted and maintained.” Apartheid-like tactics have no place here.
Section 181 of the Constitution provides that institutions such as the Public Protector are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. The Minister has ignored this admonition and has attempted to instill fear and intimidate the Public Protector through frivolous criminal charges relating to documents already in the public domain. Section 181(3) requires that organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions. Again that provision has been flouted by the Minister’s coercive and misguided tactics. She flagrantly violated section 181(4) which states that no person or organ of state may interfere with the functioning of these institutions.
I concede that the Minister is not a lawyer and reportedly has a political science diploma from Cuba. But our Constitutional Court has spoken eloquently about the “independence” of the Public Protector that only the stubborn amongst us can refuse to listen. In Economic Freedom Fighters v Speaker  ZACC 11 the Court noted that whether the Public Protector “is impartial or not would be irrelevant if the implementation of the decisions it takes is at the mercy of those against whom they are made.” The Minister must understand that her shenanigans constitute unlawful interference with the functioning of the Public Protector’s office.
The Constitutional Court cautioned that in the Public Protector’s “execution of her investigative, reporting or remedial powers, she is not to be inhibited, undermined or sabotaged.” Further, the Court observed that her “investigative powers are not supposed to bow down to anybody, not even at the door of the highest chambers of raw State power.” Unfortunately this Minister has invoked the machinery of raw state power including criminal prosecution to inhibit, undermine or sabotage that envisaged “rogue unit” investigation.
Fortunately our citizens are not easily hoodwinked by such transparently corrupt antics. The Concourt has already opened our collective eyes when it observed: “The predicament though is that mere allegations and investigation of improper or corrupt conduct against all, especially powerful public office-bearers, are generally bound to attract a very unfriendly response. An unfavourable finding of unethical or corrupt conduct coupled with remedial action, will probably be strongly resisted in an attempt to repair or soften the inescapable reputational damage. It is unlikely that unpleasant findings and a biting remedial action would be readily welcomed by those investigated.” Economic Freedom Fighters v Speaker at para. 55. The Concourt further observed that:
That the Constitution requires the Public Protector to be effective and identifies the need for her to be assisted and protected, to create a climate conducive to independence, impartiality, dignity and effectiveness, shows just how potentially intrusive her investigative powers are and how deep the remedial powers are expected to cut.
The Public Protector has been denied the assistance and protection she is constitutionally entitled to receive from SSA and Minister Letsatsi-Duba. The frivolous criminal charges, personal and political attacks have effectively destroyed the climate conducive to independence, impartiality, dignity and effectiveness of the Public Protector.
In Minister of Home Affairs v. The Public Protector (15 March 2018) the SCA concluded that the “Office of the Public Protector is not a department of state or administration and neither can it be said to he part of the national, provincial or local spheres of government. It is an independent body that is answerable only to the National Assembly…It is, however an institution that exercises both constitutional powers and public powers in terms of legislation.”. Importantly, the SCA opined that the Office of Public Protector “does not fit into the institutions of public administration but stands apart from them” and that “it is a purpose-built watch-dog that is independent and answerable not to the executive branch of government but to the National Assembly.”. Further the SCA pointed out that the Public Protector’s function “is not to administer but to investigate, report on and remedy maladministration.” The Public Protector is not answerable to the Minister or executive branch and ministers have no right to override or micro-manage the Public Protector’s investigation using apartheid-era legislation and tactics.
But the Public Protector is not without remedies. The recent Constitutional Court judgment in “Nxasana” case makes it clear that a constitutional office holder such as the Public Protector must, when faced with unconstitutional pressure by members of the Executive, including the President, demonstrate “fortitude and resilience” – she must resist and if need be call the errant member of the executive to order. The Minister can be prosecuted for unlawful interference with the functions of the Public Protector’s office.