OP-ED

The public protector’s call to be accorded the status of a judge is nonsensical — to a certain degree

By Omphemetse S Sibanda 7 August 2019

Public Protector Busisiwe Mkhwebane. (Photo: Gallo Images / Sunday Times / Moeletsi Mabe)

Busisiwe Mkhwebane has reportedly likened her standing — as a public protector — to that of a judge. But performing ‘quasi-judicial functions’ does not necessarily make one an ordinary judge.

A Sunday newspaper has reported that Public Protector Busisiwe Mkhwebane believes a personal costs order issued against her by the Constitutional Court sets a dangerous precedent. Mkhwebane told the Sunday Times that she “shouldn’t have to pay for mere legal errors” as that would weaken her office. Moreover, she likened herself to having the status of the judges of ordinary courts because she performs “quasi-judicial” functions, thus she should have full decisional independence.

According to defenders of the public protector, the series of judicial reviews to suspend the implementation of her remedial actions are generally designed to erode the judicial integrity and independence of her office.

In light of the Sunday report on the public protector questions we must ask:

  1. What is the significance of the claim for the status of a judge by the public protector? and
  2. What is decisional independence in the context of the public protector?

With regard to the first question, the significance lies in the murky relationship between the Chapter 9 institutions and the ordinary courts. Also, the hot-blooded relationship between the Office of the Public Protector and the executive, which was never a bed of roses even under the tenure of Thuli Madonsela as public protector. During the period of Madonsela, the Office of the Public Protector had challenges from political parties, particularly the African National Congress with its majority in the National Assembly during President Jacob Zuma’s administration.

The “status of a judge” claims by the public protector should not be readily rubbished. It must be used by the relevant authorities to clarify and settle the question of the place and the role of the public protector within the judiciary. A number of issues and factors from both the relevant provisions of the Constitution and the provisions of the Public Protector Act make the validity of this claim more vexed.

For example, different standards apply for the removal of the public protector and judges on the ground of incompetence. One needs to prove gross incompetence for the Judicial Service Commission to remove a judge while only incompetence is needed for the National Assembly to remove the public protector. Furthermore, in terms of Section 165 of the Constitution, the public protector is not mentioned alongside judges as forming part of the judicial authority of South Africa.

The soundness of the public protector’s call to be accorded the status of a judge is nonsensical — to a certain degree. Performing quasi-judicial functions does not necessarily make one an ordinary judge. In her case, it must also be noted that, as reportedly stated by Wits University associate professor of law, Ntombizozuko Dyani-Mhango:

Judges do not defend their judgments, yet she defends hers. If she was really a judge, she wouldn’t defend rulings in court, she would abide by the judgments [against] her.”

She cannot have her cake and eat it.

Playing the devil’s advocate, the public protector may have some merit in arguing that her role is comparable to that of a judge given her wide subject-matter mandate and wide-ranging investigative powers. Also, the fact that her decisions are not appealable.

With regard to the decisional independence question, clearly the public protector is making reference to what has been acknowledged by people such as Justice Edwin Cameron, Judge of the Constitutional Court of South Africa, who in 2010 at Middle Temple and SA Conference: Judicial Independence said that “[d]ecisional independence means protecting judges from undue external pressures from politicians, the public, and the media, to allow them to decide cases on the law and the facts before them” and allows them “to make decisions freely, without being swayed by concern for political or career consequences, or for public backlash”.

In the context of the public protector, it would seem that she believes the issue is that her decisional independence is violated because she made mistakes in her quest to investigate and hold accountable politically connected figures, and was punished unduly through hefty personal cost orders.

Mkhwebane may find solace from people like Dean M Gottehrer, former president of the United States Ombudsman Association, who regards in Fundamental Elements of an Effective Ombudsman Institution a system where, among others, there is general immunity for an ombud and staff from civil liability and criminal prosecution for acts performed under the enabling law.

With regard to bad precedent set by the Constitutional Court for personal cost orders, the public protector must be reminded of Ackermann J: Ferreira v Levin; Vryenhoek v Powell 1996 (2) SA 621 (CC) who stated that “… award of costs are by their nature sufficiently flexible and adaptable to meet new needs…”.

And the new need may be to leverage cost orders in order to ensure that quasi-judicial bodies such as the Office of the Public Protector execute their mandate with the highest degree of professionalism and competence. DM

Professor Dr Omphemetse S Sibanda Snr is a full Professor of Law in the Department of Public and Environmental Law at the School of Law, Faculty of Management and Law, University of Limpopo.

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