It was Martin Luther King who, paraphrasing the abolitionist minister Theodore Parker, said;
“The arc of the moral universe is long but it bends towards justice”.
Progressive politics does not achieve its goals expeditiously but, long as the road is, it does have a destination called justice. The struggle against apartheid bears eloquent testimony to that ending. Sometimes when it appears that those opposed to justice must win, the unexpected occurs.
Last week was a dire one for all South Africans who believe that constitutional democracy is the route to justice for 57 million South Africans. The overt political exploitation of a report from an office that was designed as a bulwark against the undermining of the constitutional scheme and its underlying values, threw a vital office into a political arena in which it should not be seen.
Invoking this report, and with the extraordinary claim that it was acting in defence of the Constitution, EFF members of Parliament decided that debate and deliberation, the cornerstones of the parliamentary process, which in turn is a critical institution for the promotion of constitutional democracy, had to be replaced by physical threats.
Then, on the weekend, the arc bent. The very newspaper which had been compelled to apologise for its earlier reportage of a “rogue” SARS unit, published a report concerning the basis of the evidence which the Public Protector (PP) had employed to justify her findings against Minister of Public Enterprises Pravin Gordhan. These findings were used by the EFF and others to accuse Gordhan of being a constitutional delinquent.
One should at this point note that Gordhan, as is his legal right, had launched an application to review the PP’s adverse findings and concomitant recommendations which, absent a successful review, are binding. In short, until the review proceedings are completed, it is hard to see how there is any breach of law.
Back to the PP’s report and the Sunday Times. If the allegations made in the newspaper are correct then it would mean the PP’s report would not be worth the paper on which it was written. The allegations suggest the PP made no serious attempt to check the veracity of what, on the face of it, is a dossier containing a host of bogus allegations. Most certainly, critics of the PP will point to the vagueness of the evidence cited in her report to support the illegality of the unit, coupled with references to evidence “in her possession”, the details of which are never set out in her report.
Even before the allegations that the PP copied “word for word”, that which was contained in a discredited report and then incorrectly ascribed it to a legal interpreter whom she never interviewed, the report was problematic. For example, save for reproducing the finds of the Sikhakhane report concerning the legality of SARS establishing a unit to curb tax evasion, there is no independent legal analysis as to why Judge Robert Nugent and his commissioners, or Wim Trengove in his opinion, were legally incorrect in their conclusions concerning the legality of the unit.
In and of itself, the section of the PP report which condemns the decision to establish an anti-evasion unit, is susceptible to a finding of irrationality. But if the allegations that key evidence, which justify the findings regarding the establishment and operation of the unit, were based on a canard of a report and with no corroborating testimony from the claimed source prove to be true, the consequences are far more serious, including possible gross incompetence and/or mala fides.
In her presentation to Parliament last week, the PP sought to defend herself against the string of judgments that have set her reports aside. She argued that judgments of courts are regularly set aside on appeal by appellate courts and no one suggests that the judge whose judgments are overturned should be removed from office. However, there is a huge difference – the reports of the PP, thanks to the Nkandla judgment of the Constitutional Court, can only be set aside for want of rationality; a judge is overturned on appeal because a higher court holds a different view of the law, or the application of the facts to the relevant law. Were a judge to regularly be found to behave in an irrational way, it is more than likely this conduct would have to be investigated by the Judicial Service Commission.
Given the latest set of allegations, it behoves Parliament, as the accountable body, to initiate a comprehensive inquiry into these allegations and following thereon, if correct, the current PP’s fitness for office. DM