A recent judgment of the North Gauteng High Court has dealt a fatal blow to the credibility of the current public protector, Busisiwe Mkhwebane, and it is difficult to see how she can recover from the effects of this judgment and remain in office. It has therefore become necessary to consider the unthinkable – that the National Assembly start proceedings to remove her from office.
Last year, after Public Protector Busisiwe Mkhwebane published her bizarre report on the Bankorp bailout in which she unlawfully ordered Parliament to change the Constitution, I wrote that the report “raised suspicions that she may not be independent and impartial”, before continuing:
“Does this warrant the removal of the public protector from office? I would argue that it does not.One should never remove an independent person from office on the basis of suspicions.”
One should not demand the removal of a judge or other person serving on an independent body merely because one does not like the decision he or she had reached, or because it turned out that the decision was wrong. More should be required. Otherwise the very independence of the body in which that person serves would be undermined.
But last week – as South Africans were all talking about the sudden resignation of Jacob Zuma as president of the country – the North Gauteng High Court delivered a scathing judgment in Absa Bank and Others v Public Protector and Others, which (in my view) struck a fatal blow to the credibility of the current public protector. The judgment not only confirmed the suspicion that the public protector is biased and lacks impartiality, but also confirmed that she is dishonest and incompetent. It is difficult to see how she can remain in her job while this judgment stands.
The judgment (from a full bench of three judges) is careful to note that the public protector’s office is a constitutionally created institution deserving of assistance and protection.
Arguing that the court should be careful when reviewing a report written by the public protector, the court quotes from the Constitutional Court judgment in Bapedi Marota Mamone V Commission on Traditional Leadership Disputes and Claims which states that a “level of deference is necessary” from the court when it reviews decisions of other administrative bodies – especially “where matters fall within the special expertise of a particular decision-making body”. The decisions of the public protector should therefore be treated with “appropriate respect”.
After careful consideration, the court nevertheless found that the public protector had imposed remedial action which went beyond the scope of her powers and thus that she had acted unlawfully. This was because she had instructed the Special Investigative Unit to request the president to re-open the investigation into the Bankorp “lifeboat”, something which (for various technical reasons I cannot go into here) she did not have the power to do.
This finding on its own would not warrant her removal from office. While it would be best if independent bodies never exceeded their powers, it might well be that they acted in good faith when they did so. Such action – while unlawful – would not normally cast serious doubt on the integrity and impartiality of the decision-maker and would not normally raise questions about the removal from office of that decision-maker.
If the judgment had ended there, I would have stuck with my previously articulated position that it would not be appropriate to have the public protector removed from office. But the High Court also held that the public protector had acted in a procedurally unfair manner and provided reasons that raise questions about the honesty and integrity of Ms Mkhwebane.
Once again, a finding of a court that the public protector had acted in a procedurally unfair manner should not, in my view, automatically warrant her removal from office. There are many technical reasons why a decision-maker would be found to have acted in a procedurally unfair manner. While it would be best if somebody like the public protector never acted in a procedurally unfair manner, it would be unfair to demand her removal from office every time a court makes a finding to this effect.
But the actions of the public protector which gave rise to the finding by the court in this instance that she had acted in a procedurally unfair manner are troubling to say the least.
First, during the proceedings it was discovered that the public protector had twice met with the Presidency before finalising her report. She never revealed this in her report (despite providing a list of individuals and institutions she had consulted with). In other words, she had lied in her report about whom she had consulted during the preparation of the report.
Worse still, she never told the court about the second meeting with the Presidency. The parties only became aware of this meeting when a handwritten note was found in the record of proceedings. This means she had also attempted to mislead the court.
Moreover, section 7(9) of the Public Protector Act requires the public protector to afford parties against whom she plans to make an adverse finding an opportunity to respond. While she afforded this opportunity to the State Security Agency and the president, she did not afford the opportunity to the Reserve Bank and Absa Bank. The court held that she flouted the law in this regard deliberately:
This cannot be an administrative oversight as she was clearly aware of the provisions of section 7(9) of the Public Protector Act when she decided to have an interview with the Presidency on 25 April 2017. Furthermore, if it was an oversight, one would have expected the public protector to have said so in her answering affidavit.
It is no wonder that the court concluded that her actions must lead to a reasonable apprehension that the Public Protector would not have brought an impartial mind to bear on the issues before her. The court thus concluded that the public protector is reasonably suspected of bias. This apprehension of bias stemmed – among others – from her dishonest actions highlighted above.
The South African Reserve Bank also asked the court to declare that the public protector had abused her office. For technical reasons, the court declined to do so.
However, in discussing the matter the court suggests that it may well be that the public protector had not fully taken the court into her confidence (in other words, that she had lied to the court). At some point, the court said, she “pretended” to have acted on advice which she only received after acting. (So, dishonesty again.) In fact, the court held that she had acted in bad faith in her dealings with the court (which is why it slapped her with a personal cost order for part of the legal costs.). The court stated as follows:
“The public protector did not conduct herself in a manner which should be expected from a person occupying the office of the Public Protector… She did not have regard thereto that her office requires her to be objective, honest and to deal with matters according to the law and that a higher standard is expected from her. She failed to explain her actions adequately…[T]he public protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice.”
In terms of section 194 of the Constitution the public protector may be removed from office only on the ground of misconduct, incapacity or incompetence. The National Assembly is the body which must first determine whether the public protector is guilty of misconduct or incompetence, after which at least two-thirds of its members must support her removal before she can be removed.
I have argued that these terms should be given a restrictive meaning and that there should be a high bar for finding that the public protector is guilty of misconduct or incompetence. It would, however, be difficult to argue that lying in a report, then attempting to mislead the court about that lie, all while acting in bad faith and in a biased manner, do not meet the minimum requirements for removal.
What we have now is an incumbent public protector whom a court has found to be dishonest. This goes far beyond a finding that she made a mistake or misconstrued her powers as it goes to the heart of what renders her effective: trust. It is not easy to trust somebody who has lied to the public and to the court and her legitimacy has therefore been fatally compromised.
It is for this reason that there is an urgent need for the National Assembly to begin the process of removing the public protector from office. There is a real danger that a failure to act will fatally compromise the entire office of the Public Protector. To support and protect that office, the person now leading it must be removed forthwith. DM
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Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
"Look for lessons about haunting when there are thousands of ghosts; when entire societies become haunted by terrible deeds that are systematically occurring and are simultaneously denied by every public organ of governance and communication." ~ Avery Gordon