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Pierre de Vos outrageously misinterprets the Public Protector Act

In 28 months, Public Protector Busisiwe Mkhwebane has managed to thoroughly damage the institution of her office and its capabilities. (Photo: Leila Dougan)

The key purpose behind an opinion piece by Pierre De Vos attacking Busisiwe Mkhwebane’s pursuit of Pravin Gordhan, it would seem, was to lend ‘professorship status’ to the ongoing tussle, the ultimate objective being to force the Public Protector out of office.

On 13 November 2018, Prof Pierre de Vos, a well-known South African constitutional law scholar, published an unfortunate article titled Regardless of the politics, public protector’s pursuit of Gordhan is legally flawed and fails the honesty test.

In the article, De Vos claims authoritatively that the Public Protector’s statement that Minister Gordhan failed to respond to her letters calling upon him to comment on allegations that he improperly approved the early retirement and subsequent re-employment of then Deputy Commissioner of the South African Revenue Service, Ivan Pillay, was misleading and false.

However, not once did De Vos request comment from the Public Protector to confirm this before writing and publishing the article in question. Had De Vos done that, he would have been informed that letters were written to Minister Gordhan, specifically requesting his response to the allegations and that, at the time of publishing the article, Minister Gordhan had not provided the Public Protector with his responses to the claims. The Minister has since provided oral evidence to the Public Protector during the much-talked-about meeting held on Wednesday, 14 November 2018.

In the same article, De Vos goes further to allege bizarrely that the Public Protector Act does not impose a legal duty on Minister Gordhan to respond to such requests by the Public Protector. However, he fails to appreciate that the Public Protector has power, in terms of section 7(4) of the Public Protector Act, to subpoena any person who fails and/or refuses to co-operate with her investigation. The power to subpoena is intended to ensure accountability by actors in state affairs and to guarantee the dignity and effectiveness of the Public Protector.

That section of the act specifically provides that, for the purposes of conducting an investigation, and this includes a preliminary investigation, the Public Protector may direct any person to appear before her to give evidence or to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated, and may examine such person.

What is more disturbing, though, about De Vos’ article is that he fails to observe the basic principles of interpretation of the statute, which require the reader to first understand the definition of the terminology used in the act before reading and interpreting that piece of legislation. Had he read the definitions section of the act, he would have noticed and appreciated the definition of the word “investigation”. The act states explicitly that the word means “investigation referred to in section 7, including any preliminary investigation related thereto”.

The allegation by De Vos that the Public Protector has no power to subpoena any person during the preliminary stage of an investigation therefore has no legal basis and is devoid of any truth, because, a “preliminary investigation” is clearly an “investigation”.

While the Public Protector respects everyone’s right to freedom of expression, which includes freedom of academic exercise, she is concerned about the manner in which some legal scholars intentionally mislead the public by brazenly misinterpreting and distorting the meaning of the provisions of the Public Protector Act, with no consideration for the significance of this piece of legislation, which was enacted to protect the public from abuse of power by government and its entities.

It is also instructive to point out that De Vos’s conduct with this article, challenging the Public Protector’s power to subpoena Minister Gordhan, may be in violation of the very same Constitution, particularly section 181(4) thereof.

We know from the 2016 landmark Constitutional Court judgments in the EFF vs Speaker of the National Assembly and others and the DA vs Speaker of the National Assembly and Others that that the Public Protector has very wide powers that leave no lever of government power above scrutiny and that may result in coincidental “embarrassment” and censure on the part of those implicated. The court further held that, in the execution of her investigative reporting or remedial powers, the Public Protector is not to be inhibited, undermined or sabotaged.

Another concern is that De Vos still relies on the judgments (wrong precedents) in South African Reserve Bank v Public Protector & others, wherein Murphy J concluded that the Promotion of Administrative Justice Act (PAJA) applied to reviews of remedial action ordered by the Public Protector and the most recent pronouncement on the applicability of PAJA, in a full court, in Absa Bank Limited & others v Public Protector & others.

However, the conclusions in the above judgments have since been overruled by the Supreme Court Of Appeal (SCA) in the case of Minister of Home Affairs v The Public Protector, 15 March 2018, wherein the SCA concluded that “the constitutional and statutory powers and functions vested in the Public Protector to investigate, report on and remedy maladministration are not administrative in nature and so are not reviewable in terms of [section] 6 of the PAJA”.

Professors are highly acclaimed and revered people in society and any statements and pronouncements they make often are regarded by many, at face value, as true. Therefore any reckless conduct by such people has the potential to encourage people not to comply with official, legal directives from the Public Protector, thus interfering with the proper functioning of her office in violation of the Constitution.

It must be noted that Section 11(1) of the Public Protector Act provides that “any person who interferes with the functioning of the office of the Public Protector as contemplated in section 181 (4) of the Constitution, shall be guilty of an offence”.

Having said that, a pertinent question arises: Was De Vos’ conduct truly a case of misunderstanding or misinterpreting the law?

Other than the function to generate new knowledge, one key role of academics in society is to give direction and enhance its understanding of complex subjects, in the process ensuring peaceful and orderly co-existence between members of society between and among themselves and the reality in which they find themselves.

Since academics occupy such a crucial societal role, are torch-bearers and a compass to humanity, qualities higher than those of ordinary people are expected of them. However, one important quality any academic should possess is honesty, which is an overriding epistemological attribute that guarantees reliability and trustworthiness of synthesised information.

Each time an academic retreats to his study with a view to producing any academic work, the primary inquiry dominating his mind should be “of what value, be it to the community or himself/family, is the intended academic product”?

The time at which the product enters the market plays a significant role in determining the value of the academic product thus produced.

Departing from the premises above, we see De Vos setting himself a goal to analyse the legal correctness of the Public Protector’s action of issuing a subpoena against Minister Gordhan. This action by the Public Protector against the Minister has been the subject of public discourse for some time. And the ensuing discussions have literally divided the public (at least on social media platforms) into two major groups, one in support of the minister and the other, the Public Protector.

Quite correctly and in the true nature of an academic, De Vos’ instincts propel him too to enter the discussion. However, the timing of his entry is curious, to say the least. Just on the eve of the meeting between the Public Protector and the Minister, De Vos launches his column on the subject for the public to see and edify itself.

The stark reality of it, though, is the shallowness and superficial nature of the analysis undertaken as dissected above. Despite so many views already out there, and, other than missing the definitions as appearing in the act, De Vos does not even offer a definition of what “a subpoena” is —the core issue upon which this whole issue is based. It leaves ordinary people to wonder what animal a subpoena could be.

Instead, his piece quotes another piece earlier in the day, relies on tweets, and, from there, as already stated elsewhere in this piece, distorts the provisions of the act and the interpretation courts have given to these provisions.

Rather than these shortcomings being regarded as mere misunderstanding and/or misinterpretation of the law and legal principles, it appears the purpose of this article was never to achieve any historical mission a conscientious and honest academic would set himself up to.

Seemingly, the article was never intended to be the work of academy as it would normally be expected from a revered professor. It was apparently not aimed at helping society to understand the legal dilemma purportedly presented by the Public Protector’s actions against Minister Gordhan.

The key purpose behind this article, it would seem, was just to lend “professorship status” to the ongoing tussle, whose ultimate objective is to wrestle the Public Protector out of office. Thus, the status of the author is the premium ahead of the quality of the product.

The unequivocal, true objective of this article appears to be nowhere better exhibited than in its timing. If indeed it is true, as argued by De Vos, that the Public Protector is not entitled to issue a subpoena because the investigation is at preliminary stage, and as such the whole exercise by the Public Protector against the minister is illegal, why did such “an illuminating” legal view reach the public so late in the discussion?

Of what value to the public, the Public Protector, whom we all are enjoined by the supreme law of the country to support, and Minister Gordhan was this opinion – published when no more time is left for its fruitful consumption – to salvage whatever could be salvaged by its use?

It would appear that De Vos, who competed alongside Busisiwe Mkhwebane for the position of Public Protector and failed to make the cut, has long held a view that she is incapable. Many will recall that he was among the leading critics of the Public Protector’s Helen Zille Report on the Western Cape premier’s colonialism tweets. Even there, he distorted the law and when he was confronted with proof of such distortion, he went to ground. To this day, the public that follows his work remains misled.

Here again he emerges to mislead the public. However, the key question is that, since he is a law professor and an honest South African who firmly believes the Public Protector’s legal knowledge is deficient, why enter critical discussions at the 11th hour when no value is to be had from his intervention? DM

Oupa Segalwe is acting spokesperson for the Public Protector of South Africa.

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