The power of prestige

Professor Pierre De Vos, an academic at my alma mater, is regarded by many as a constitutional law expert. He publishes prodigiously on constitutional issues on his blog and elsewhere. His opinion on matters with a constitutional flavour is much sought after by media houses in South Africa, and rightly so.

On social media – and, one suspects, even beyond that platform – the professor has developed a swarm of disciples. So when the professor speaks, everyone listens, an approving nod always at the ready. At the very least, that is the general expectation because, lately, acquiescence in the professor’s constitutional ruminations seems to have become something of a standard by which everyone else’s legal prowess is measured.

That is an enormous power of influence that any one man can have. That power is particularly magnified in a society (like South Africa) which has high levels of functional illiteracy. Such societies tend to be fertile ground for breeding a mob-like mentality, and an almost hypnotic consumption of everything dished out by those with prestige of one form or another.

“Prestige”, a polymath named Gustave le Bon wrote in his 1895 book, “The Crowd: A Study of the Popular Mind”, “is a sort of domination exercised on our mind by an individual, a work, or an idea. This domination entirely paralyses our critical faculty, and fills our soul with astonishment and respect”.

Le Bon characterised prestige as “the mainspring of all authority… [without which] neither gods, kings nor women have ever reigned”. He continued:

“The special characteristic of prestige is to prevent us seeing things as they are and to entirely paralyse our judgment. Crowds always, and individuals as a rule, stand in need of ready-made opinions on all subjects. The popularity of these opinions is independent of the measure of truth or error they contain, and is solely regulated by their prestige”.

So, by sheer dint of their prestige, which they in turn derive from an individual’s prestige, which he in turn derives from his life’s station, mere ruminations or opinions assume a cult-like status of a general belief that becomes so entrenched that it is generally considered abnormal to question it.

It is in this context that I view the professor’s public attack on the Public Protector. His is not an attack of the sort experienced by a moving car when accosted by township dogs. The professor’s attack on the Public Protector is considerably more injurious precisely because it comes clad in prestige of the sort that imposes domination that entirely paralyses the critical faculty of those who hold him in awe by virtue of his life’s station.

In the South African context, not only his academic station but also his race and gender gives his ruminations prestige. That he is a white male in South Africa (not by choice but by accident of birth) magnifies the prestige of his attack considerably. (Lest I be misunderstood, I should add that from what I know of the professor he has not one jot of racism in his blood. So, I’m certain that whatever motivates his attack on the Public Protector is not race or gender.)

It is not only the uneducated and uninformed among us who fall prey to an entrenched general belief that is, on closer scrutiny, false. People of great intellect do, too, by virtue of the prestige (not merits) of the belief.

The general belief that is generally perpetrated in the media and social media is that the Public Protector is incompetent, dishonest and is not fit to continue in that office. Enters Professor De Vos and lends prestige to the belief. Case closed.

I have little doubt – for reasons I have already touched on with reference to le Bon’s analysis on the popular mind – that this general belief is now so entrenched that the Public Protector is unlikely to survive it. But let me be clear: It is not the truth or the merits of the belief that will most likely see her off; it is the force of its prestige. Why she finds herself the target of this relentless assault I have my own views which I may discuss when the dust has settled.

The sting

Feeding into this manufactured general belief that the Public Protector is not fit for office, the sting of Professor De Vos’s opinion comes at its tail. He concludes:

“But what I can say with firm conviction is that the Public Protector has been acting in an unprofessional and less than honest manner in pursuit of the minister.”

This comes after the Public Protector subpoenaed the Minister of Public Enterprises, Pravin Gordhan, to appear before her and answer questions in relation to matters that the Public Protector is investigating following a 2016 complaint. This is a power that the Public Protector Act confers on her in clear and unambiguous terms. The only trouble appears to be that she has exercised it to touch an individual who, many believe, should not be touched.

The professor makes several submissions with a view to justifying his conclusion that the Public Protector’s investigation of a complaint against the minister is “less than honest” (an attack on her human dignity, integrity and fitness for office) and “unprofessional” (an attack on her fitness for office).

Let’s examine the professor’s reasoning.

The professor kicks off his opinion piece by searching for, and finding, common ground with a politician, with whose party and leaders he appears to have a love-hate relationship, for the proposition that even that politician does not want the Public Protector in office even though it voted in favour of her being recommended for appointment. The sub-text seems to be that the Public Protector has no friends on either side of the political spectrum. This is political commentary rather than legal commentary.

Then the professor presents the minister as a knight in shining armour in his “ruthless clean-up of state-owned enterprises” while, by suggestive reasoning, presenting the Public Protector as somehow ensconced with a motley crew of “looters and their political backers running scared and fighting back”. Another political commentary.

But then the professor leaves the political theme undeveloped, and says he leaves it “to others”. This is not an innocuous tangent. It is intended for atmosphere. For the rest of the piece, the reader cannot ignore the association of the Public Protector with “looters and their political backers running scared and fighting back” against a minister hell-bent – ostensibly for the good of us all – on a “ruthless clean-up of state-owned enterprises”. The prestige of the general belief has thus been firmly planted by innuendo.

The choice of phrase is not accidental in its ruthless pursuit of a hatchet job on the Public Protector either. In any other case, when a complainant lodges a complaint, and the functionary performs a preliminary investigation with a view to ascertaining whether or not there is a prima facie case, there would be no uproar. But to the professor, this is not just a preliminary investigation, despite the Public Protector’s say-so. The professor prefers to characterise a preliminary investigation variously as (1) the “pursuit of Pravin Gordhan”, (2) the “latest moves against Gordhan”, (3) “recent move against minister Gordhan”, (4) “this sorry saga”, and (5) the “pursuit of the minister”.

Calling it what it is, a “preliminary investigation”, will not do for the sting to be effective. So incendiary phrases are carefully employed.

The complaint may well be meritless. But why should a preliminary investigation of it be characterised as “pursuit of the minister” and “this sorry saga”? The answer is to be found in the introductory paragraphs of the professor’s piece. By innuendo, not evidence, the professor associates the Public Protector with “looters and their political backers” intent on stopping a minister from cleaning up state-owned enterprises. He provides nary a scintilla of evidence for this.

This makes sense only when one considers how crowd or mob psychology works. Le Bon touches on this phenomenon in his study when he says:

“As for the [adversary], an effort must be made to destroy his chance by establishing by dint of affirmation, repetition, and contagion that he is an arrant scoundrel, and that it is a matter of common knowledge that he has been guilty of several crimes. It is, of course, useless to trouble about any semblance of proof. Should the adversary be ill-acquainted with the psychology of crowds he will try to justify himself by arguments instead of confining himself to replying to one set of affirmations by another; and he will have no chance whatever of being successful.”

This, in my assessment, is what is at play here. The idea is (1) to characterise the Public Protector as “an arrant scoundrel” by contagion and repetition; (2) to establish by repetition that “it is a matter of common knowledge” that she is guilty of dishonestly, incompetently and unprofessionally pursuing a minister for doing his job; and (3) not to bother with any evidence but rather to allow relentless innuendo to fester into “common knowledge” by repetition of unproven claims.

So far, none of this attack by the professor on the Public Protector constitutes legal analysis or argument. It is just a hatchet job.

The professor’s legal analysis

When the professor does lawyer up, he makes sweeping and startling submissions that are thin on legal reasoning and pregnant with non sequiturs that presume the very conclusion he is in law required to prove.

Once disempowered, always disempowered

First – and in some kind of “once-disempowered, always-disempowered approach” – the professor points to a high court judgment for the proposition that the Public Protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice. The professor seems to invoke this judgment (currently the subject of appeal to the Constitutional Court¹) in order to show that the Public Protector is not acting impartially and without fear and prejudice toward the minister.

But citing judicial pronouncement in one case on the conduct of a functionary does not serve as irrefutable evidence that the functionary has committed in another case that of which she was rebuked in the first case.

A finding by a court that a person had “in the matter before it” stolen bread is not evidence that the person is a habitual thief of bread, and that every time there is an allegation of bread theft it must be accepted without more evidence that he is the one who stole it. Evidence of theft in each case must be presented. At best for the accuser, similar fact evidence can come into play, but it still needs to be weighed up with other relevant factors. As the Constitutional Court has said in Savoi 2014 (5) SA 317 (CC), there is still ample room in South Africa for a less restrictive approach to the admission of similar fact evidence.

The subpoena question and principles of interpretation

But the pivot of the professor’s case against the Public Protector is that because the Public Protector subpoenaed the minister during the preliminary investigation stage of a complaint against him, she thereby failed to act impartially and without prejudice towards the minister. This reasoning the professor founds on the proposition that the Public Protector “is not legally permitted to subpoena the minister to force him to answer questions [during the preliminary investigation as that]… would constitute a grave abuse of power”. This extraordinary submission the professor seeks to justify in his subsequent article published in reply to the Public Protector’s spokesperson’s criticism of his original opinion piece in this regard. Already in the hole, the professor succeeds only in digging himself deeper by invoking what he terms “the approach to legal interpretation adopted by South Africa’s Constitutional Court – that legislation should be interpreted purposely [sic] (thus within its context) and – if possible – to give effect to the fundamental values in the Constitution”.

Except, that is not quite the approach adopted by our courts, including the Constitutional Court. The proper approach to interpretation was well enunciated in a 2012 judgment of the Supreme Court of Appeal in Natal Joint Municipal Pension Fund v Endumeni Municipality which has been followed consistently by other courts and the Constitutional Court, most recently in Airports Company South Africa v Big Five Duty Free (Pty) Limited and Others (CCT257/17) [2018] ZACC 33 (27 September 2018).

In Endumeni the SCA said:

“The present state of the law can be expressed as follows: Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence.

“Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production.

“Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document.

“Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The ‘inevitable point of departure is the language of the provision itself’, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.”

There is no room in this accepted interpretative approach for the professor’s foray into constitutional values. The convoluted analysis into which the professor forages appears to have one purpose: to obfuscate.

But even if a constitutional issue did arise, lost in all this obfuscation is appreciation of the principle that where a case can be determined without resort to the determination of a constitutional issue, this must be the preferred approach (Zantsi v Council of State, Ciskei 1995 (3) SA 614 (CC) at para [3]; S v Mhlungu 1995 (3) SA 867 (CC) at para [59]; Gardener v Whitaker 1996 (4) SA 337 (CC) at para [14]).

The professor’s foray into a constitutional values inquiry would arise only where the constitutional validity of the Public Protector Act is raised. Even that would be considered only if a court finds it necessary in the circumstances to resolve a constitutional issue. The minister has to my knowledge raised no constitutional issue about the act. The professor does not suggest the minister raises a constitutional issue either.

When I sent a draft of this opinion piece to the professor for comment, the professor graciously drew my attention to the Constitutional Court’s judgment in Jordaan 2017 (6) SA 287 (CC) for the proposition that constitutional issues “must generally enjoy primacy” and that courts do not have the luxury of “avoiding [them] wherever possible”. The professor points, in particular, to this excerpt:

“[8] The result is that under the final Constitution the approach Mhlungu espoused has long since been abandoned in favour of its opposite, namely that constitutional approaches to rights determination must generally enjoy primacy. Far from avoiding constitutional issues whenever possible, this Court has emphasised that virtually all issues – including the interpretation and application of legislation and the development and application of the common law – are, ultimately, constitutional. This affects how to approach them from the outset.”

In my view, Jordaan is not authority for the proposition that where a constitutional issue arises it must, of necessity, be dealt with even where it is not necessary to do so. Where, for instance, a contractual dispute arises and the plaintiff also mounts a constitutional attack, a court does not have to decide the constitutional issue if it can dispose of the matter purely on the interpretation of the contract. This is not about “avoiding” the constitutional issue. It is about whether it is necessary to deal with it at all.

An example of this is where a medical scheme repudiates a claim for the treatment of diabetes, and terminates a member’s membership, on the ground that the member failed to disclose a pre-existing medical condition of Crohn’s Disease.

If the member mounts a challenge on the ground not only that Crohn’s Disease has nothing to do with diabetes, but also on the ground that the medical scheme offends her section 27 right to health care, the court would not have to decide the constitutional challenge in order to determine the contractual issue.

The termination of medical scheme membership in these circumstances is, in fact, a real life experience of many. I am yet to learn of one reported judgment in which such matters have been decided on the basis of section 27.

But where a constitutional issue is raised squarely, and the final determination of the contractual dispute hinges on the determination of the constitutional question, then a court cannot avoid addressing that constitutional question. Barkhuizen v Napier 2007 (5) SA 323 (CC) is an example of one such case.

But this is a digression. The minister has not raised any constitutional issue. The professor does not suggest that he did.

The pivot of the professor’s argument is that the Public Protector abuses her subpoena powers by invoking them during the preliminary investigation stage. That is a matter of statutory interpretation. According to Constitutional Court jurisprudence, beginning with NEHAWU v UCT 2003 (3) SA 1 (CC), that constitutes a constitutional matter. But the minister and his lawyers have not pursued that line and, I would suggest, for good reason.

The fact that the professor holds the view that the Public Protector acted beyond the powers conferred upon her by the empowering act in invoking her subpoena powers during preliminary investigation stage cannot mean that the Public Protector is incompetent or dishonest or acts in bad faith. Even if a court ultimately agrees with the professor that she does not have the power of subpoena at preliminary investigation stage, such a judgment will not prove that she acted dishonestly or incompetently or with an ulterior motive.

So, until the Constitutional Court has finally decided otherwise, the professor is mistaken in his analysis on the Public Protector’s powers of subpoena at preliminary investigation stage. He is mistaken not on the basis of some “purposive approach” or approach steeped in “constitutional values”. He is mistaken based on the plain reading of the act.

Section 7 of the Public Protector Act, in relevant parts, says:

“(4) (a) For the purposes of conducting an investigation the Public Protector may direct any person to submit an affidavit or affirmed declaration or to appear before him or 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.

(b) The Public Protector or any person duly authorised thereto by him or her may request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on a matter being or to be investigated.

(5) A direction referred to in subsection (4)(a) shall be by way of a subpoena containing particulars of the matter in connection with which the person subpoenaed is required to appear before the Public Protector and shall be signed by the Public Protector and served on the person subpoenaed either by a registered letter sent through the post or by delivery by a person authorised thereto by the Public Protector.

(8) Any person appearing before the Public Protector by virtue of the provisions of subsection (4) may be assisted at such examination by an advocate or an attorney and shall be entitled to peruse such of the documents or records referred to in subsection (2) as are reasonably necessary to refresh his or her memory.” (my underlining)

The Act defines “investigation” to mean

“an investigation referred to in section 7, including any preliminary investigation related thereto”

Applying the Endumeni approach to interpretation – namely, (1) adopting an objective process of attributing meaning to the words used; (2) giving consideration to the language used in the light of the ordinary rules of grammar and syntax; (3) giving consideration to the context in which the provision appears; (4) eschewing the temptation to substitute what one regards as reasonable, sensible or businesslike for the words actually used – there can be no doubt that section 7, read together with the definition of “investigation”, says what it means and means what it plainly says.

In short, the section empowers the Public Protector (1) to conduct investigations (2) including preliminary investigations (3) by way of subpoenas containing particulars of the matter in connection with which the person subpoenaed is required to appear before her (4) for purposes of answering questions (5) under oath or affirmed declaration (6) produce documents in his possession or within his control which have a bearing on the matters being investigated (7) and may be assisted at such questioning by an advocate or an attorney (8) and be entitled to peruse such of the documents or records submitted to the Public Protector as are reasonably necessary to refresh his memory.

This is nothing new. The National Prosecuting Act, 1998, contains a similar provision in section 28(2) to (10) about the summonsing of persons during preparatory investigation stage to appear and answer questions under oath on the subject of the investigation. No practising lawyer has thought it worthwhile to challenge these provisions along the lines that rile the professor.

In Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd 2001 (1) SA 545 (CC), the Constitutional Court held that a provision involving a search and seizure warrant for purposes of preparatory investigation was not unconstitutional. Counsel in that matter did not seek to challenge section 28(2) to (10) dealing with subpoenas (or summons) during preparatory investigations. The professor, though, seems to know better. Perhaps he may one day appear in court to challenge the Public Protector’s subpoena powers at preliminary investigation stage. We could all learn from the exercise.

When section 28(6) dealing with the questioning of persons under subpoena even during preparatory investigation stage was challenged in Shaik v Minister of Justice and Constitutional Development 2004 (3) SA 599 (CC), the Constitutional Court declined to entertain it as the challenge had been mounted on the wrong provision.

So, the professor is quite mistaken when he says: “It would constitute a grave abuse of power for her to use her subpoena power if she has not completed a preliminary investigation yet.” The Public Protector is perfectly entitled to question the minister, under subpoena, on the subject matter of her preliminary investigation.

The access to information issue

The professor overstates the import of section 7(8) of the Public Protector Act. The professor says the section requires that the minister be provided not only with particulars of the allegations against him but also with all relevant documents on which the Public Protector relied to decide to proceed with an investigation.

He then concludes, on the say-so of the minister’s attorney, that the minister has not been provided with these documents. But the professor does not tell the reader what the Public Protector says in this regard. This demonstrates the professor’s predisposition towards whatever favours the minister and reflects negatively on the Public Protector and cannot make for an objective legal analysis.

But let’s be clear on this; if the minister was not provided with documents, this would be no more than a procedural lapse for which there are remedies in law. But the professor seems to elevate this to being demonstrative of the Public Protector’s vigorous “pursuit” of the minister with a view to frustrating the minister’s state capture-busting efforts. It’s an herculean leap of which only a lopsided analysis is capable.

But the professor’s construction of section 7(8) of the act seems coloured by the outcome of his analysis that he is determined, come hell or high water, to reach. The section says:

“(8) Any person appearing before the Public Protector by virtue of the provisions of subsection (4) may be assisted at such examination by an advocate or an attorney and shall be entitled to peruse such of the documents or records referred to in subsection (2) as are reasonably necessary to refresh his or her memory.”

The section confers upon the minister, who has been subpoenaed to come answer questions on the subject of the preliminary investigation, the right to be assisted at such questioning (or examination) by a lawyer if he so chooses. It also confers upon him the right to peruse, at such questioning (or examination), documents and records that have been submitted to the Public Protector in relation to the subject of the preliminary investigation.

Read together with section 7(4)(a) it becomes clear that the documents and records contemplated in section 7(8) are those that the minister would have provided to the Public Protector or seen prior to the questioning or examination. One can only refresh one’s memory on the contents of documents one has seen before. There can be no talk of refreshing memory from documents or records that one sees for the first time. Had the legislature intended otherwise, it would have talked of “such of the documents or records… as are necessary to prepare” for the examination or questioning, not to refresh his memory.

There is another consideration that the professor seems to have overlooked. Some documents or records in the Public Protector’s possession relating to the subject of her investigation may be subject to privilege of one form or another. Provided the Public Protector can establish such privilege, the minister would not be entitled to such documents or records, much less so to take them away with him as there is a risk of them being possibly copied or destroyed.

Moreover, if everyone subpoenaed under section 7(5) read together with section 7(4)(a) were entitled to all relevant documents in the Public Protector’s possession before submitting himself to examination, investigations would drag on forever and never reach finality. There could potentially be applications to have privileged documents produced, collateral challenges to the authenticity of documents, challenges to the legality of the manner in which documents have been obtained, challenges to the admissibility of records or documents sought to be used in the examination. The list of potential technical niceties (meritorious or not) is endless.

The legislature could never have intended such a process still at preliminary investigation stage. The idea in section 7(8) is that relevant documents are perused at the examination only to refresh memory, not at home or lawyers’ offices weeks before examination in order to frustrate the investigation by cultivating technical challenges to the process.

Thus, in my view the professor is quite mistaken when he says, citing one side and ignoring the other, on the issue of documents, that “the Public Protector is in breach of the legislation governing her office”.

In any event, section 7(5) requires that the subpoena must contain “particulars of the matter in connection with which the person subpoenaed is required to appear before the Public Protector”. There is no rational basis for the professor to believe that the subpoena delivered to the minister contained no such detail that would enable the minister and his lawyers to know precisely what the examination would cover and prepare for it.

Knowledge of the law?

The professor charges that the Public Protector has “limited knowledge of the law”. This is yet another plank on the scaffolding erected to demonstrate her unfitness to continue holding the position. No doubt the professor may have in mind the high court’s pronouncements in a February 2018 judgment as irrefutable proof of this. The high court has set aside her remedial action.

But a finding by a court that the Public Protector was wrong or mistaken in law or fact cannot constitute irrefutable proof that she is not fit to hold that office. All it means is that she may have been wrong or mistaken in a particular case. It does not follow from this that she is incompetent and not fit for office.

The law reports are replete with judgments of the high court Full Bench, the SCA and the Constitutional Court setting aside judgments of lower courts, sometimes in biting language. Some judges may have the unenviable reputation of being set aside on appeal or review more often than others. This does not mean that the judges whose judgments have been set aside are incompetent and not fit for the bench.

Take a 2003 judgment of the SCA, for example, where Harms JA (as he then was) said:

“[13] The first reported judgment on the present issue is ABSA Bank Ltd v Amod [1999] 2 B All SA 423 (W) (per Schwarzman J). It held that PIE did not apply to cases of holding over. The learned Judge referred to the history of PIE and its relationship to PISA. PISA, he said, was limited to squatters strictu sensu; the intention of PIE was to invert PISA; PIE was consequently likewise limited; since PISA did not extend to persons whose lawful occupation became unlawful, the same limitation ought to apply to PIE. This reasoning found favour with the Full Court in Ellis v Viljoen 2001 (4) SA 795 (C) at 800 – 1 and the Court a quo in the Ndlovu appeal.

[14] This reasoning is based upon a misreading of PISA.”

Does this mean Judge Schwarzman was, by virtue of having been found by a higher court to have misread a piece of legislation, incompetent and not fit to be a judge? Of course not. So why should a different standard apply to the Public Protector who applies the same law?

In 2014, the SCA characterised employment equity under the Employment Equity Act disparagingly as “almost like a throwback to the grand apartheid design”. In a unanimous judgment of five judges, the SCA went on to adjudge the appellant as having been unfairly discriminated against on grounds of race. The Constitutional Court reversed the SCA judgment. It found nothing unfairly discriminatory in the Employment Equity Act. Does that mean the five SCA judges are incompetent and not fit for the bench? No.

Administrators often have their decisions set aside on review in the courts. They are not hounded out of office on account of that. Why should the Public Protector be hounded out?

Who protects the Protector?

Someone once said of retirement funds that they are like beached whales into which every man and his dog can take a bite. I think it is fair to say that the abuse, vilification, attack, hostility, enmity and sheer disdain for this Public Protector is so unparalleled – if media reports and social media are any indication – that the image of a beached whale with a gaping torso wound and being circled by predatory (two-legged) creatures is hard for me to shake off.

I am sure there is much good work the Public Protector does for the ordinary person, but you will scarcely hear of it in the media as if such good by her does not make for “good copy”. Even images of the Public Protector that the media uses seem carefully selected to cast her in a negative light of one form or another.

The Public Protector is an advocate. The Bar usually issues media statements to condemn personal attacks on judges. The Public Protector has endured and continues to endure persistent personal attacks from politicians, journalists, talk-show hosts and some business leaders (like a chief executive of an asset management company with hundreds of billions of rands under management).

Now a celebrated professor of law, armed with political innuendo and legal analysis that is not altogether faultless, has joined in the feeding frenzy. Should advocates’ organisations not intervene?

I have decided to speak out not because I am a dyed-in-the-wool disciple of the Public Protector, but because I see an injustice being perpetrated on her with impunity. I am, after all, an INTJ Scorpio.

The Public Protector is not beyond reproach; none of us are. But the relentless personal attacks on her are not justified in fact and in law. Instead they undermine the effectiveness of that office.

This sets a terrible precedent because the next Public Protector who does not pander to the whims of politicians and the powerful and influential elite will suffer the same fate until a Public Protector favoured by these elites is found. DM

Vuyani Ngalwana is an ALI Fellow.