Opinion

ANALYSIS | Serjeant at the Bar: the Mkhwebane judgment asks some serious questions of MPs

If this was the only judgment against the Public Protector’s reports, one might be entitled to consider that this was an aberration. Sadly, this is not the first time that a court has made  a similar finding, writes Serjeant at the Bar   

The latest judicial excoriation of the Public Protector, this time by a Full Bench of the Gauteng High Court compels one question to be answered:  how in a country which so desperately needs to curb corruption in State administration can so important an office continue to be held by a person who has been found yet again to have incurred a series of calamitous errors as the court found in respect of Adv Busisiwe Mkhwebane? 

This decision followed an investigation by the Public Protector of a payment of R500 000 made into an account allegedly for the benefit of the son of President Ramaphosa.   

President Ramaphosa was  asked about this payment by the then leader of the official opposition Mr Mmusi Maimane.   

A week after his initial answer Mr Ramaphosa wrote to the Speaker of the National Assembly stating that he initially provided incorrect information in response to Mr Maimane’s question and that the payment of R500 000 had been made on behalf of Mr Gavin Watson (of Bosasa infamy) to the CR17 Campaign.   

The Presidential answers to this question gave rise to complaints, one from Mr Maimane and the other from Floyd Shivambu, of the EFF.   

In her report about these complaints the Public Protector found that the President had misled Parliament in that he had failed to disclose these  donations to the  CR17 Campaign and that further there was a prima facie suspicion of money laundering. 

It was as a result of these very serious findings that the President sought to review the report of the Public Protector.  

The upshot  of the litigation was that the court found in favour of the President and set aside the Public Protector’s findings as invalid and ordered the Public Protector to pay the President’s  costs on a punitive scale as between attorney and client.    

Coming after so many adverse findings against the Public Protector’s reports in previous cases, this conclusion alone would justify consideration of her removal from office on grounds of clear unfitness.   

But the judgment goes far further and is even more damning and far-reaching in its consequences for the future of the  incumbent of so important an office.   

The first egregious error concerns the Public Protector’s approach to the Executive Ethics Code which was relevant to the veracity of the answer provided to Parliament by the President.   

The relevant paragraph of the Code – being paragraph 2.3(a) – provides “members of the Executive may not … wilfully mislead the legislature to which they are accountable”. 

In her report the Public Protector quotes from this paragraph and says the following: “Regard must be had to s 2.3 of the Code that states that Members may not – ‘Deliberately or inadvertently misleads the President or the Premier or as in this case the Legislature’.” (my emphasis)   

The Court observed that  the Public Protector replaced “wilfully” which is the word employed in the Code with “deliberately or inadvertently”.   

As noted “the problem is that the Public Protector introduced the element of inadvertent misleading of Parliament into the Code.  This is entirely at odds with the text of the Code.   

“It also introduces an entirely different text whether in legal terms, or even in common sense terms. There is a material difference between conduct that is wilful and that which is inadvertent.  The one simply cannot be mistaken or interchange with the other.”   

The introduction of the word “inadvertent”   becomes important because the Public Protector concludes that President Ramaphosa’s reply was in breach of the provisions of paragraph 2.3 (a) of the Executive Ethics Code the standard “which include deliberate and inadvertent misleading of the Legislature.  He inadvertently and/or deliberately misled Parliament… ”   

As the Court correctly noted “at best, this conclusion seems to point to carelessness on the President’s part or with  the benefit of hindsight an ill-judged decision to answer Mr Maimane’s question then and there.   

However, by no stretch of law, logic or even ethics could conduct of this nature be said to amount to a wilful of deliberate misleading of Parliament.   

The Public Protector demonstrated such a fundamentally flawed approach to this  key finding that it was an obvious  ground for setting aside her decision. 

Even more disturbing is the finding that the Public Protector, when issuing her notice to President Ramaphosa that she was considering an adverse finding against him in terms of section 7 (9) of the Public Protector Act said “his conduct referred to above although in good faith is inconsistent with his office as a member of Cabinet and therefore in violation of s 96 (1) of the Constitution”.   

As the judgment noted that meant that the Public Protector had gone on record as accepting the President’s bona fides. 

The President responded accordingly: “The Public Protector has correctly found that the President acted in good faith. That should be the end of the matter.” 

But plain meaning  of words are obviously of no moment to the Public Protector. 

In her final report she referred to this submission of the President as “preposterous”.   

As the Court correctly observed “this response has placed a deep-seated inability or refusal to process facts before her in logical and fair minded manner. 

Such a response is difficult to reconcile with her constitutional obligations.

The Court emphasised that the complaint which had been raised by Mr Maimane and Mr Shivambu concerned an alleged payment to an election campaign internal to the ANC.   

The court accepted that the Public Protector was possessed of wide powers.

However, that did not give her a blank cheque: her obligation was to investigate “any conduct in State affairs or in the Public Administration in any sphere of government”. (s 182 of the Constitution)   

Her sphere of competence therefore was clearly limited to matters involving State affairs, Public Administration, the exercise of public powers, public funds or conduct which concerns the affairs of government.   

The Public Protector’s counsel was constrained to argue that anything associated with the population, territory or the sovereignty of the government of a State falls within the meaning of State affairs.

Therefore the Public Protector was possessed of jurisdiction to investigate private campaigns. 

In this connection, the Constitutional Court provides clear authority in the case of Ramakatse v Magashule (2013) – “at common law a voluntary association like the ANC is taken to have been created by agreement as  is not a body established by statute”.   

Hence the Public Protector did not have the jurisdiction to deal with this complaint. 

Turning to the finding that prima facie the President was guilty of money laundering the court said: 

“The Public Protector had no foundation in fact and in law to arrive at her finding that the President had involved himself in illegal activities sufficient to evoke a suspicion of money laundering. 

“In addition the Public Protector based her finding on legislation that had nothing to do with the offence of money laundering.   

“The conclusion is inescapable that in dealing with this issue the Public Protector completely failed to properly analyse and understand the facts and evidence at her disposal. 

“She also showed a complete lack of basic knowledge of the law and its application. She clearly did not acquaint herself with the relevant law that actually defines and establishes the offence of money laundering before making serious unsubstantiated findings of money laundering against a duly elected head of state.”

If this was the only judgment against the Public Protector’s reports, one might be entitled to consider that this was an aberration.

Sadly, this is not the first time that a court has made  a similar finding.   

In clarion terms, three judges of the Gauteng High Court have now found that the Public Protector does not display the most basic understanding of law to fulfill her functions in a rational fashion.    

The only defence appears to be  the oft-repeated argument of the Public Protector that judgments of High Courts are also set aside by higher courts.   

Suffice it to say: the Public Protector is not a judge whose decisions are appealed, judicial orders  are not taken on review.   

Were a judge to be found guilty of mala fides as has happened previously with the Public Protector, one would hope that the Judicial Service Commission would deal accordingly with such a judge. 

It is simply no defence to compare herself to a judge whose order has set aside. 

In this case the standard for review based on rationality is vastly different to the  setting aside an order of a court on appeal.   

There is simply no adequate defence to the findings of the Court. 

True in typical South African style this decision is to be appealed.   

But the egregious mistakes which the Court found were committed by the Public Protector  means that it is unlikely that these findings will be overturned by a higher court. 

To return to the beginning of this article, the judgment demands an answer to a further question: are our duly elected members of Parliament serious about curbing mal-administration?   

If they, are then they should do their duty in respect of the present incumbent of so crucial an office.  

– Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.

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