Opinionista Professor Balthazar 22 July 2019

The Mkhwebane judgment: Parliament must now do its job

Those who have been shouting about the need for constitutional compliance have not simply been engaged in an exercise of political opportunism. They, with the balance of the country, must surely now say to Parliament – we cannot have a person in such an important office who misrepresents under oath and deliberately obfuscates critical facts.

The intensity of the legal struggles that have been waged over the past couple of months between competing political forces, both within the ruling party and by opposition parties against the president and his key supporters, as is the case with the EFF or in a curious fashion by the DA, has built to a climax.

It is significant that the reports of the Public Protector have been the battlegrounds for lawfare for much longer; the collapse of the reign of former president Jacob Zuma was in large part precipitated by the report of the previous Public Protector, advocate Thuli Madonsela.

In a mirror-image move, the report of the present Pubic Protector, advocate Busisiwe Mkhwebane, has now been employed by opponents of President Cyril Ramaphosa to mount a similar campaign, at least to the extent that he should temporarily step down pending the resolution of the review application which is to be launched against the report of the Public Protector concerning the financing of the CR17 campaign.

The parallel breaks down, sadly for those intent on employing the same form of lawfare to remove President Ramaphosa, as had been successful in the case of Jacob Zuma. The present Public Protector has been the subject of devastating findings of irrational conduct in the compilation of her reports. About a third of her reports have been taken on judicial review. Reading the applications brought, for example, by Minister Pravin Gordhan against two of her reports, leaves the legal reader in little doubt about the strength of the case against the legal validity of these reports.

For some eight months, however, the country waited for some confirmation of its anxieties concerning the performance of the present Public Protector from the Constitutional Court, it having been seized of an appeal against a personal costs order made by the Gauteng High Court to be paid by the Public Protector following her calamitous report on the ABSA /Reserve Bank bailout. Finally, that judgment came down on Monday. True, Chief Justice Mogoeng and Acting Justice Goliath found that a personal cost order was not justified in this case, but a large majority of the court differed in a compelling and clearly motivated judgement.

To the concern of the Public Protector, which she has repeated in her response to this judgment and which was supported in the minority judgment, namely that it weakens the constitutional office of the Public Protector if it can be subjected to such punitive orders, the majority provided a clear answer:

There is no merit in the Public Protector’s contention that the independence of her office and proper performance of her functions demand that she should be exempted from the threat of being mulcted with adverse personal costs orders. On the contrary, personal costs orders constitute an essential, constitutionally infused mechanism to ensure that the Public Protector acts in good faith and in accordance with the law and the Constitution.”

The Nkandla judgment of the Constitutional Court gave the office of the Public Protector extremely wide powers: Whereas the judgment of a High Court can be set aside if an appellate court holds a different view on either the relevant law or the application of the law to the facts of the case, the Public Protector’s reports can only be set aside for want of rationality, which is a fairly low threshold to negotiate. It must surely follow that, where such an office behaves with gross incompetence or worse, bad faith, an adverse cost order is an important instrument to ensure accountability.

In the ABSA case, the Public Protector was more than a tad disingenuous in her inability to explain, in particular why she had met president Zuma, in the furtherance of this investigation. After a careful examination of the papers presented to the court, the majority concluded:

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous ‘misstatements’, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.”

This is a truly devastating finding, one that could surely justify an application for a strike off from the roll of advocates. If those who have been shouting about the need for constitutional compliance have not simply been engaged in an exercise of political opportunism, they, together with the balance of the country, must surely now say to Parliament — we cannot have a person in such an important office who misrepresents under oath and deliberately obfuscates critical facts. And given this judgment, there is now a likelihood of the present incumbent having to pay many more such punitive cost orders. Parliament must now do its job. DM

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