The changes were picked up early in the tenure of Busisiwe Mkhwebane. In an email to her, Accountability Now pointed out, as long ago as January 2017, that:

“The purpose of confidentially circulating provisional/preliminary reports of the OPP to all interested and affected parties is to avoid reputational harm of the serious kind which is now taking place in this matter because the section 7(9) procedure is not, and has not been treated by your office, as a confidential one. This appears from the manner in which you interacted with us on Monday and from the wording of your letter to the president. The matter ought not to reach the public domain before the potentially detrimentally implicated parties have had the opportunity of putting their version and counter-veiling submissions to the OPP for consideration and possible inclusion in the duly amended final report that is made public in terms of section 182(5) of the Constitution. Openness, accountability and responsiveness, all foundational values, have to be balanced against the audi alteram partem rule, rights to property, privacy and confidentiality of process.

“While we appreciate that the format and the procedure to be followed in conducting any investigation shall be determined by you under Section 7(1)(b)(i), this has to be done with due regard to the circumstances of each case. In this case the circumstances militating against the use of Section 7(9), without first securing confidentiality, include the possible impact of the investigation on the economy as a whole, the adverse effects on the credibility of the Reserve Bank, the possibility of a run on ABSA and the reputational and financial damage that is foreseeable if, as you have done, the matter is not handled confidentially and on the basis that suitable undertakings to keep matters confidential are not obtained prior to the issuing of a section 7(9) notice and the (allegedly inadvertent) dissemination of the provisional report in the manner that has occurred, whether accidentally or by design.”

In a follow-up letter to the Justice Portfolio Committee, it was noted that:

“While the effectiveness of the confidentiality undertakings is not absolute and has not always secured the OPP’s reports against leaks to the media, it is certainly better than nothing to obtain them.  It may be that remedial legislation or a better administrative regulatory system should be put in place.”

Sadly, no substantive response has been received to either of the communications quoted from; it is to be hoped that the sixth parliament will deal with the matter of the fitness for office of the current Public Protector diligently and without delay, as is required by the Constitution itself.

Chapter Nine Institutions, of which the Office of the Public Protector is but one, enjoy special status in the constitutional order now in place in SA. These institutions were brought into being at the dawn of democracy as “state institutions supporting constitutional democracy”. The founders of the new order realised that after many decades of parliamentary sovereignty and a few decades of authoritarian narrow nationalist rule, institutional support for the new dispensation was needed. The population had become inured to being passive subjects rather than active citizens. The “We the people…” ethos of participation in governance needed to be bedded down by institutions of state, all independent in nature, but all wedded to the idea of making the new form of government, in which the Constitution – not the will of parliament – is supreme, a success.

The very idea of a supreme constitution which binds government to remain consistent with its provisions both in its conduct and in the laws it passes was so new to citizens (and politicians), that the means of supporting them in the new way of governing was devised by establishing the six Chapter Nine Institutions. The main and most important of these are the Auditor General, the Human Rights Commission, the Electoral Commission and the Public Protector. All of these institutions report to parliament, are free of executive control and are “subject only to the Constitution and the law” in the same way as the judiciary. The Constitution requires that they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.

No person or organ of state may interfere with the functioning of these institutions. On the contrary, the other organs of state must assist and protect them to ensure their “independence, impartiality, dignity and effectiveness”.

The OPP investigates maladministration in the conduct of state affairs and the public service. It has the power to take appropriate remedial action in binding fashion when it reports on any misconduct it may find in its investigations.

Due to the binding nature of the remedial action, those required to take it must either comply or challenge the remedial action by way of judicial review. Ignoring the Public Protector is not an option. The OPP has the potential to be a force for integrity in governance and for the establishment of strong institutions of state that comply with international standards. A good Public Protector is a boon to the economy in that wasteful or irregular expenditure can be reversed and improper procurements set aside as invalid, illegal, irrational and unconstitutional.

In order to fortify the independent nature of the Chapter Nine Institutions, their leaders may be removed from office only on the grounds of misconduct, incapacity or incompetence. The procedure is a finding to that effect by a committee of the National Assembly and the adoption by the Assembly of a resolution calling for the official concerned to be removed from office. In the case of the Public Protector, a two-thirds majority in the Assembly is required. The President may suspend a person from office at any time after the start of the proceedings for removal and must remove that person from office upon the adoption of the necessary resolution by the Assembly.

The current Public Protector has elicited the ire of the Democratic Alliance and others on the basis of her alleged incompetence. Several of her reports have been ignominiously overturned on review by the courts. Judicial criticism has come thick and fast and even in the form of a personal costs award against her which is currently on appeal to the Constitutional Court.

There is a long history of the DA’s disquiet with the Public Protector, going back to the DA’s assertion that she is a spy and not a fit and proper person to hold independent office. These assertions were made during the selection process necessary after the previous Public Protector was constitutionally obliged to step down in October 2016 at the end of her term of office. With the exception of the EFF, it now seems that most opposition parties in the Assembly are dissatisfied with the performance of the Public Protector and regard the judicial complaints about her lack of competence to be a sufficient basis for her removal from office. Even the SACP has joined the chorus calling for an inquiry.

Incompetence is a matter of degree. Some may regard the blunders of the Public Protector as unforgivable evidence of incompetence, others may view her missteps as signs of inexperience in her new post, which are unlikely to be repeated as time passes and she learns the ropes of her position. The repetitive nature of the errors made and their gross nature would suggest that the incompetence complaints have merit. The Public Protector stoutly avers that judges are not dismissed when their judgments are reversed on appeal, so she should not be punished when her reports and findings are set aside on review. This attitude is perhaps an oversimplification of the nature of the problem.

Accountability Now, an NGO that frequently complains to (but not about) the OPP, has a different type of complaint about the Public Protector, one which goes to her integrity and probity. The Public Protector has refused to engage on the complaint of Accountability Now, spuriously suggesting that she cannot investigate herself when in fact she has only been asked to account for her prima facie dishonesty. It will be appreciated that dishonesty is not a quality to be expected of a fit and proper person holding the high office of Public Protector.

The essential difference between a dishonesty complaint and one of incompetence is that the latter may be curable as one learns the ropes of the position at the head of the OPP, but the former is not.

The gory details of the complaint of dishonesty are available on the Accountability Now website. In short, it appears, prima facie, that the Public Protector lied, in writing, about the existence of her preliminary or provisional report in the Absa lifeboat matter, in which the complaint was that the State Security Agency was guilty of incurring wasteful expenditure when it refused to allow the recovery of funds allegedly stolen in the dying days of apartheid as uncovered by an agency called CIEX engaged by the SSA to investigate the matters in question.

The Public Protector declined to answer a series of questions aimed at extracting an explanation, if there is one, for the lie. A complaint to the justice committee of the National Assembly of the Fifth Parliament, which exercised oversight over the OPP, was fudged away or neglected by that committee, or at least its ANC majority, which found a pretext for putting off dealing with the fitness for office of the Public Protector because of pending litigation which has since either been lost by the OPP or is still pending.

Upon the appointment of the new Speaker of the sixth parliament, Accountability Now has renewed its complaint that the Public Protector has dealt dishonestly with it as complainant in the Absa lifeboat matter. The Speaker is, according to media reports, taking legal advice on how best to deal with the fitness for office of the Public Protector.

In this time of transition between the Zuma and Ramaphosa administrations, and while the ANC remains bedevilled by factionalism, it is of acute importance that the OPP remains independent and impartial in all its dealings. Any whiff of impropriety, including involvement in the promotion of factional interests, is deserving of censure because of the high standards expected of those who hold the high office of Public Protector. While lack of competence is always a matter of degree and may be curable by training, proper advice, remedial judgments and the like, lack of honesty and integrity are not matters of degree and ought not to be tolerated in those who hold the high office of Public Protector.

The Constitution requires that a committee of the National Assembly make a finding of innocence or misconduct or incompetence. It is up to the Speaker to ensure that this onerous duty is discharged “diligently and without delay” as the Constitution requires. Whether the task is given to a standing committee or to a special ad hoc committee, it is one that can no longer, in the interests of the health of constitutionalism, be allowed to fester in the manner allowed in the last parliament. DM

Paul Hoffman SC is a director of Accountability Now.