There are three criteria that come to mind when dealing with and thinking about Chapter Nine institutions: character, skills and integrity.
Take the Human Rights Commission. I expect the character of the office to be one of respect, functioning with dignity and conducting its affairs above reproach. The commissioners must have the skills to conduct operations with efficiency and transparency. All the commission does and all its findings must have integrity and gravitas.
If the Human Rights Commission gets it wrong on four occasions and embarrasses the integrity of the office, surely we as the public would raise concerns? The competency of the individuals and the office would rightfully be questioned. Accusing certain individuals and/or organisations of violating the Universal Declaration of Human Rights, only to be told by our courts that you have erred in your application of the law, will constitute gross negligence, and legislators and politicians would be within their rights to call for heads to roll.
Similarly, if the auditor-general is found wanting in the execution of his mandate, it would give the public and its representatives comfort if they knew they were in a position to correct such flaws. This would entail either removing the AG or looking carefully at the powers given to that office and whether or not they should be revised up or downwards.
I could make this argument for all the remaining Chapter Nine institutions, but the point is made.
Now, where did all this brouhaha around the Public Protector (PP) begin?
It started with former PP Thuli Madonsela’s Secure in Comfort report, which found Jacob Zuma had improperly benefitted from the security upgrades paid for by state funds to his private residence in Nkandla. She recommended that Zuma repay some of the R246-million to the state.
Zuma ignored her recommendations, saying they were advisory. The matter was taken to the Constitutional Court, which ruled that remedial actions recommended by the PP must be enforced, but also that they can be reviewed only by a court of law, and while you exercise your right to challenge these recommendations, you have to interdict the findings to stop their implementation. In other words, you can challenge, but in the meantime, you have to implement the findings.
Now, I’m no legal expert but two of the cardinal features of law are justice and fairness. How fair is it that you must implement the PP’s findings while your challenge can only be heard in a court of law in the distant future? If the court eventually finds in your favour, after the implementation of the PP’s findings, what remedial action is open to you? You, who in keeping with the PP’s recommendation, were fired from your job or placed on suspension. Is this fair?
Fairness in law plus the audi alteram partem (listen to the other side) rule suggest that once you have mounted a successful court challenge, the matter is in abeyance. Put another way, the matter is under judicial consideration until the courts rule on it.
If this is fairness, surely to insist on still having to implement the PP’s findings suggests that our courts are stating unequivocally that the PP is omnipotent? She is the investigator, the prosecutor and the judge all in one.
Given recent utterances and instructions with fixed timelines to Parliament, the NPA, the Hawks, the ministers of police and state security from our PP, I can go further and say not only is she more powerful than the president, but also more powerful than the entire state and its three arms. She has instructed all the above to act fast on matters pertaining to Public Enterprises Minister Pravin Gordhan.
It seems that because it was convenient for our apex court to rule and give effect to such a wide interpretation of the law and the powers of the PP and the fact that it went against the then very-disliked Jacob Zuma, we all assumed that every subsequent PP would be like Madonsela.
How wrong we were.
Thuli Madonsela set the bar very high: her character was beyond reproach, her skills were excellent and her integrity unquestionable. She conducted herself with poise and dignity.
The current PP’s recent legal escapades suggest she is incompetent. She has lost each of the court cases she has appeared in, and she was ordered by the High Court to personally pay legal costs because she was wasting the court’s time with shabby and incoherent work and evidence.
Let’s look at the Pravin Gordhan matter.
There have been many interpretations and comments with regard to the so-called “rogue unit” and whether or not it was intelligence-gathering machinery of SARS, and whether it was or wasn’t illegal.
About 70 witnesses testified at the Nugent Commission, where Supreme Court of Appeal Judge Robert Nugent came across this so-called “rogue unit”. It wasn’t the focus of his investigation, but he had to apply himself legally to the matter because of the commission’s terms of reference. In his report, he found there was nothing unlawful or untoward about the unit. And he then moved on to the other work of the commission.
The Sunday Times at the time, which was clearly used as a disinformation tool, retracted most of the insinuations made in its articles and openly apologised to Gordhan for any damage to his person and character.
The auditing firm KPMG also woke from its slumber and not only withdrew its report into this matter, but also returned the R23-million received for its services, followed by an apology to Gordhan.
SARS and its head at the time, Tom Moyane, did not want to accept the Nugent finding and requested senior counsel Wim Trengove to apply his legal mind to the matter of the “rogue unit”. Trengrove made his findings clear but this did not sit well with Moyane and was ignored by him.
Subsequently, Trengrove’s services were again requested, this time by Gordhan, and the eminent lawyer repeated his findings to the minister. Gordhan quotes extensively from these in his report to the Public Protector and in answering the 27 questions forwarded to him by the Hawks.
Gordhan’s report states that, in terms of Section 4 (1) (a) of the SARS Act, “SARS must ‘secure the efficient and effective, and widest possible, enforcement’” of the tax laws listed in Schedule 1. Those tax laws have always vested SARS with wide powers for the investigation of tax matters, including investigating crimes with tax implications.
SARS has thus always had its own investigation and enforcement units engaged in a wide range of investigations, including criminal investigations with tax implications.
With regards to the legality of the unit, Gordhan was advised by his legal team that the Sikhakhane panel of inquiry was mistaken in finding that the establishment of the unit had contravened Section 3 of the National Strategic Intelligence Act 39 of 1994. In its report on 5 November 2014, the panel also said Section 3 “prohibits the conducting of covert intelligence gathering by structures other than the National Defence Force, the SAPS or the State Security Agency”.
There is no general prohibition in this section, says Trengove. It is merely a restriction imposed on those departments that are required by law to perform functions “with regard to the security of the Republic or the combatting of any threat to the security of the Republic”. SARS is clearly not such a department, and is not subject to the prohibition.
No, oh no, not on my watch, says Public Protector Busisiwe Mkhwebane, no no no. Regardless of the withdrawal by the Sunday Times, KPMG, the pronouncements of Trengove and of Judge Nugent, I will reopen this cold case and instruct all and sundry to act and act fast against Minister Pravin Gordhan.
What’s going on here? Is this a classic case of wasted resources? And is there, on top of it, a political motivation at play?
As to the call for Gordhan’s resignation, let me say this:
He will not resign, simply out of principle. And that principle says: “If I resign now amid all these allegations, it would be tantamount to an admission of guilt. Should I jump ship now before all these allegations are found to be true?”
This is not what the minister will do. He will first make damn sure he clears his good name before entertaining any such drastic steps.
Secondly, he will not resign because it will set a very bad precedent for others. That precedent being that because of unfounded allegations and pressure from the PP, one must resign and not exercise one’s legal rights against her findings.
I would go as far as to state that if Gordhan should resign, he is also tendering the resignation of the president, since Cyril Ramaphosa too is under the spell of the PP with her insinuations of money laundering et al.
There will be no such resignations, I’m afraid to inform the EFF and the PP and whoever is firmly behind her, because this campaign cannot be run by our PP. When she was at the Intelligence head office affectionately called The Farm, she was a low-level employee. How the ANC found it in their considered wisdom to appoint her still boggles the mind.
Just because you moved from a P2 low level to PP, don’t let power get the better of you. You are playing with fire and when you do that, you will get burned.
I don’t think the Public Protector will still be in office by December this year, and it’s not because she is pursuing Pravin Gordhan or the president. It’s simply because she is incompetent and bringing the stature that office once had into disrepute.
The apex court in the land needs to be afforded another opportunity to review its findings with regards to the powers of the PP. After all, no one institution is infallible, as has so aptly been demonstrated by Busisiwe Mkhwebane. DM