OP-ED

The Threat to Democracy, Part One: The Public Protector

By Raymond Suttner 15 July 2019

Professor Raymond Suttner at his home in Johannesburg. (Photo: Madelene Cronjé / New Frame)

There have been continued expressions of unhappiness over the actions and findings of the current Public Protector. To call for removal of someone holding such high office can only be done in extreme circumstances, where it is clear that the person acts contrary to what is expected from her office. In the cases of the current incumbent, many of her actions are setting back attempts to regularise governance and return the country to legality.

This article first appeared on Creamer Media’s website: polity.org.za

Much of the media has been dominated over recent weeks by controversy surrounding reports of the Public Protector (PP) on the conduct of President Cyril Ramaphosa and Pravin Gordhan, as well as some of Gordhan’s former colleagues at the South African Revenue Service (SARS), notably former Deputy Commissioner, Ivan Pillay, who has also had adverse findings against him in reports of the PP.

As with the reports of the former PP (Thuli Madonsela) on Nkandla, sharp political lines have been drawn, though, paradoxically, the leaders of the charge against Gordhan, in particular, and to some extent Ramaphosa have been the Economic Freedom Fighters (EFF). They had led many of the steps against malgovernance of former President Jacob Zuma, in Parliament and in court (together with the DA and other parties and NGOs), while the ANC defended him in Parliament and other fora until after the 2016 elections.

This time, the ANC is backing Ramaphosa and Gordhan, although it is unclear to what extent this will be sustained in the light of the extent of intense divisions in the organisation, mainly surrounding Ramaphosa on the one side and ANC Secretary-General Ace Magashule on the other. A number of individuals, previously close to Zuma, have aligned themselves with Magashule, who scarcely disguises his lukewarm loyalty towards Ramaphosa as ANC and state president.

Ramaphosa, Gordhan and Pillay have all entered review and interdicting processes against the findings and implementation of the remedial action required by the PP. (See various articles of Pierre de Vos, including, recently, this and this. I have read the poorly argued reports of the PP and the devastating affidavits of Ramaphosa, Gordhan and Pillay but defer to the expertise of De Vos and will not attempt a further interpretation of my own.

The PP claims that the individuals against whom she has made findings must abide by these and they must be implemented in the meantime, even if they are seeking a review or an interdict, which they dispute.

For the moment the ANC is united behind Gordhan, particularly after the EFF tried to physically stop Gordhan from speaking in the National Assembly on his budget vote for Public Enterprises on Thursday, through confronting him in a threatening manner at the speaker’s podium. They had said that they would not allow a “constitutional delinquent” to speak (constitutional delinquent being a phrase previously used for Zuma, insofar as he had not implemented the findings of the previous PP). It appears very likely that the only way they would have been able to do this, in light of Gordhan standing his ground, would have been through forcing him physically from the podium. They appeared ready to carry that out.

The ANC and other parties came to stand by Gordhan’s side at the podium and the house chairperson, Grace Boroto, called in the security services to remove the EFF MPs.

On becoming president of the country Ramaphosa declared the onset of a “new dawn”. But it is well known that the departure of Zuma from the ANC and state presidency has not ended the battle over State Capture and corruption. Furthermore, the (Deputy Chief Justice Raymond) Zondo Commission has heard additional evidence of State Capture, apparently quite unrelated to the Gupta family with whose association the allegations against Zuma were, to a large extent, founded.

Periodically the EFF leaders have referred to the SARS “rogue unit”. That allegation was first raised at the time of Tom Moyane’s leadership of SARS against Gordhan, Ivan Pillay and others in order to remove from SARS those who were dedicated fighters of tax evasion and State Capture. Their removal and the “restructuring” that followed led to the collapse of much of SARS’s capacity and disintegration of trust, and failure to meet tax collection targets.

At the time, it was not evident that Malema or anyone else in the EFF were concerned about or believed or were directly connected with this question, for the rogue unit narrative was then seen as disinformation fed to media, most of whom later withdrew and apologised for their reports as did those responsible for finding the investigative unit to have acted illegally, notably KPMG auditing company and retired Judge Frank Kroon. All but a few of the journalists involved in the “rogue unit” saga have been removed or distanced themselves from the stories.

The Nugent Commission into SARS as well as numerous legal opinions by top advocates like Wim Trengove SC had confirmed that there was nothing illegal about the investigative capacity that had been established in SARS to deal with serious tax evasion.

The new public protector and political partisanship

Former Public Protector Thuli Madonsela made findings that had been an important plank in the removal of Jacob Zuma when these were endorsed by the Constitutional Court deciding that he had failed to act in accordance with his oath of office and that the National Assembly had also failed to carry out its duties. No one has made credible arguments against the legal reasoning in the former PP’s findings and the court decision. She was replaced by Advocate Busisiwe Mkhwebane as PP in September 2016.

Early on there were symbolically disturbing signs, as when Mkhwebane changed the news channel in the PP offices from eNCA to the Gupta-owned channel, ANN7. In a series of findings – on Absa and the SARB, the Estina Dairy Project and others – she has been found to have misapplied the law, to act with ignorance of her own powers, failure to properly investigate, possibly acting in bad faith or dishonestly or with bias. In more than one case a punitive cost order was issued against her, that is, that she has to bear a portion of the costs of the litigation she lost, basically for wasting taxpayers’ money in the litigation.

Having experienced such serious adverse findings, one might have expected the PP to be very cautious in order to avoid inviting similar findings in the future. Even if the findings are not upheld at the Constitutional Court, these damning remarks have been made by senior judges with well-established reputations who do not lightly make such rulings. One would expect the PP to do everything to avoid any recurrence, until the appeal is heard.

But that has not been the case. She has chosen to focus on high-stakes, high-profile and very controversial cases, it appears without adequate preparation on both law and facts. With Ramaphosa, as president of the country, he is challenging the PP’s findings. Because of space, I am restricting comments, here, to the focus on SARS, Gordhan and Ivan Pillay.

With the SARS focus, first, in relation to Pillay, the PP has reopened a case concerning his early retirement and subsequent re-employment, which even Shaun Abrahams, notorious for abiding by what would please former president Zuma, decided to withdraw. Abrahams had done so because before Gordhan allowed the pension to be paid out and Pillay’s subsequent re-employment, he took advice from some six legal and/or other authorities, who were specialists in the rules of the civil service. The unanimous opinion had been that what was being done had been carried out on numerous occasions before and that it was quite legal. At least one opinion was from the SARS legal unit and there was an attempt to suppress this during the Tom Moyane period, leading to some embarrassment of himself and Abrahams.

But this has been resuscitated by the PP, with the strong likelihood that the review proceedings will set aside her findings and possibly also lead to a judgment of mala fides and the award of punitive costs.

With the alleged SARS “rogue unit”, even before issuing her findings the PP did not observe the normal protocol of referring to it as an “alleged” rogue unit but appeared to accept in advance that it was “rogue”. As with previous findings on Gordhan and Pillay, she did not appear to have allowed sufficient time between alerting the party to her imminent findings and their presenting and her considering their representations.

In each case, legal experts have shown, as do the papers of Pillay, Gordhan and others that the PP does not appear to have addressed their arguments and that her findings are factually and legally unsound. Factually insofar as she often refers to information in her possession, which she does not disclose as the basis for a finding – which Gordhan contests, or is in other respects demonstrably inaccurate. It is legally unsound insofar as the interpretation of what the alleged rogue unit did does not contravene any law and her interpretation of provisions relating to intelligence gathering appears to be completely unfounded in current legislation.

Political location of the PP

In recent times, with more and more fallouts between those acting to clean up the state and those associated with Zuma and Magashule, it can be said that at an objective level, what the PP has done is a disservice to those acting to eradicate State Capture and restore legality. Likewise, it assists those who wish to plunder the resources of the state by continually pummelling those with a record of attempting to “clean up” after the Zuma years.

Objectively, what the PP is doing – on at least a debatable legal basis – serves to assist those who are against the clean-up of the state and restoration of governance with integrity. If one weakens Gordhan and Ramaphosa, whatever the intention, one also weakens the clean-up. Just as loopholes or failure to pursue necessary enquiries that allow the Estina Dairy tenders to go without investigation, one strengthens those who are nostalgic for and would prefer to return to the practices of the Zuma period. It is clearly a matter of time before other legal institutions, like the Special Investigative Unit (SIU), Hawks and the National Prosecuting Authority (NPA), act on this matter. By evading this path in the Estina Dairy project, the PP put her stamp on the side that is allegedly responsible for widespread illegality and corruption.

At a subjective level, it may be claimed that all that the PP is doing is to apply the law. But the way she attributes intention to Ramaphosa and Gordhan goes further than objective findings and imposes her own version of what their intention was (not simply as a range of possibilities). At a subjective level, she also either does not know the law applicable to her role or has poor legal advice. Given that this has happened repeatedly and there is a good chance of this happening with Gordhan, Pillay and Ramaphosa, it cannot be blamed on lawyers, but her choosing lawyers from whom she wants a particular result, rather than advice that is sound.

Clearly, there is something amiss in the PP’s public self-representation when she attributes her appointment and possible removal as something for which God is responsible. There may be something amusing in reading this, but the country cannot afford to have such people holding important offices in a democratic state.

To remove a Public Protector is a very serious action and should not be undertaken lightly. But the damage done by the current incumbent, through partisan targeting of those who are most committed to clean government and the attendant wastage of time and resources, needs to be stopped. Up till the current parliament, there has been a reluctance to move on this issue. My sense is that there is considerable public pressure for the removal of Mkhwebane and no substantial reason to allow her to remain in office. DM

Part two will cover the Economic Freedom Fighters as a threat to South African democracy.

Raymond Suttner is a visiting professor in the Faculty of Humanities, University of Johannesburg, a senior research associate at the Centre for Change and emeritus professor at Unisa. He served lengthy periods in prison and house arrest for underground and public anti-apartheid activities. His writings cover contemporary politics, history, and social questions, especially issues relating to identities, gender and sexualities. He blogs at raymondsuttner.com and his twitter handle is @raymondsuttner

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