What a week for Chapter 9 institutions, the judiciary, the legal profession and constitutional democracy! In one case, serious allegations of gross misconduct have been levelled against the Western Cape Judge President John Hlophe by his Deputy Judge President Patricia Goliath. And there are calls for JP Hlophe’s impeachment and removal from the Bench.

Another development of national importance is the go-ahead given by National Assembly Speaker Thandi Modise for the removal proceedings against Public Protector Busisiwe Mkhwebane. The move for the president to remove Mkhwebane in terms of Section 194(3)(b) of the Constitution was motioned by the Democratic Alliance (DA). Section 194 of the Constitution provides for the removal of the Public Protector from office “on the grounds of misconduct, incapacity or incompetence”.

The impending removal proceedings against the public protector is, in my view, about to put the entire judiciary under the stiffest test yet and brings into question the sustainability of the political appointment of heads of our Chapter 9 institutions.

According to Supra Mahumapelo, who is a former premier of North West and a key figure within the ANC, Mkhwebane is doing a good job.

“There is no way that the ANC in Parliament will support the motion of the opposition in the form of the DA to remove the public protector,” he said.

The Black Lawyers’ Association (BLA) has suggested that Mkhwebane is the victim of unfair treatment. According to BLA deputy president Baitseng Rangata there were various instances where case law carried negative comments on judges, but that has not been used to label them incompetent or used as a solid ground for the judges concerned to be removed from the Bench.

Of course, Rangata, who also had an acting judge stint in Gauteng North High Court: Pretoria, would be aware that in other jurisdictions, judges have been removed from the bench because of how they presided over and ruled in their cases.

For example, in 2016 in the United States, a Brooklyn Supreme Court judge was found unqualified to be on the bench by a Democratic Party screening panel. The accusation against her included the fact that “an abnormal percentage of cases were overturned by higher courts”. Moreover, she was alleged to have a poor reputation, accused by lawyers and litigants as offhand and discourteous; and also “fell out of favour with the powers that be”. In this regard, public opinion is sharply divided on Mkhwebane, earning her the appellation of great divider within both the political and legal landscape.

Clearly, Mkhwebane is not going to go down without a fight — though I must submit there are no surprises here as previously reported incidents show she is no pushover. Already, she has hinted at a possible defensive approach, including the fact that this is a witch-hunt and a politically motivated action taken after she issued recommendations in matters involving President Cyril Ramaphosa and Minister Pravin Gordhan:

“I am, however, concerned about what appears to be an abuse of state institutions to settle scores…” she has said.

True to her long-held position that she must be treated like any other judge within the South African judiciary, Mkwebane claimed unfair treatment.

“I liken this to a situation where a judge, magistrate or arbitrator condemns someone and is later expected to conduct a fair trial of the very person,” she said.

I hold no brief for Mkhwebane. In fact, I have written critically before on this platform of Mkhwebane or pointed to the scathing criticisms she received from the courts, including one from the Constitutional Court.

However, it is important that the general public, particularly ordinary members of the public, are made to understand in clear and no uncertain terms the reasons for the removal of Mkhwebane from office. Perhaps we must also know what past public protectors did not do to merit their removal from office.

Mkhwebane may have a point in arguing that openness and justice dictate that you cannot have unknown post-facto procedural and substantive rules in such an important matter such as removal of a person with a constitutional duty to protect the public from executive excesses.

Back to the issue of the conduct of past public protectors: as the National assembly sits to deliberate on the removal of Mkhwebane, it must be borne in mind that her call for impartiality and a process free from bias will forever define its appreciation of justiciable conduct and decision-making.

More so in that one of her predecessors was also found to have acted in a manner that is not befitting of a person occupying the Office of the Public Protector (OPP). The court in the case of Public Protector v Mail and Guardian Ltd (422/10) [2011] ZASCA 108 (1 June 2011) found then public protector Lawrence Mushwana to have acted improperly by conducting an investigation in haste and making a recommendation that could not stand a day in court on review. The investigation was a whitewash intended primarily to pacify the public and to absolve the powers-that-be while at the same time exonerating the complainants.

In this case, that involves the famous “Oilgate” scandal, Judge Robert Nugent observed that the OPP was not meritorious in performing its function and that there was blatant “paucity of the investigation” with the investigation “undertaken as little more than a formality”. To the court’s surprise, the public protector had concluded that he found “no impropriety on the part of any of the various functionaries and entities concerned”.

In fact, Judge Nugent was convinced that Mushwana failed to conduct a proper investigation to warrant the report he issued and recommendations made.

“An investigation that is not conducted with an open and enquiring mind is no investigation at all”, said Judge Nugent [par: 21]. The state of mind of the public protector at the time and virtue he was serving became questionable. The observation made is that “…there was in truth no investigation of the substance of the various complaints” [par:140] and that “the investigation was so scant as not to be an investigation at all” [141]. What the OPP achieved was to disembowel the complainants.

The above narrative about the case that involved one of Mkhwebane’s predecessors makes one question the consistency of our Parliament. In fact, after reading Judge Nugent’s judgment in context, some commentators may be excused for concluding that Mkhwebane the hunter is now the hunted because she is a female person who fell out of favour with the gentleman’s club in Parliament.

The OPP is an important institution for the Republic of South Africa. To borrow directly from the case of The Public Protector v Mail & Guardian Ltd, the OPP “provides what will often be the last defence against bureaucratic oppression, and against corruption and malfeasance in public office that is capable of insidiously destroying the nation. If that institution falters or finds itself undermined, the nation loses an indispensable constitutional guarantee”. [Par:6]

The image of the OPP must always be protected. And it must not start nor end with the tenure of Mkhwebane. The National Assembly also owes a duty through its conduct or that of its members individually, to protect the image and integrity of the OPP and other Chapter 9 institutions as our key human rights institutions.

The European Council in 2019 resolved to foster the protection of the ombuds’ offices by requiring members to “refrain from any action aiming at or resulting in the suppression or undermining of the Ombudsman institution and from any attacks or threats against such institutions and their staff, and protect them against such acts”. We all know how our National Assembly failed to stop relentless attacks against former public protector Thuli Madonsela, and some of the members of the National Assembly abuse the criticism against the outcomes of Mkhwebane for personal reasons.

Removal proceedings themselves are no guarantee that the image and integrity of the OPP is and will be protected. If not done properly, the removal of Mkhwebane may possibly carry with it the seeds of current unhealthiness into the office of the next public protector.

I am not arguing for Mkhwebane to dictate the framework and terms and conditions for her removal proceedings. The potential removal of Mkhwebane is of historic proportions and must be done impartially and judiciously even when proceedings are conducted within the belly of a political establishment like the National Assembly.

Politically conscious members of the National Assembly need not fear the OPP more than they must fear being agents of promoting corruption and lack of accountability in government and public service. There is a need for a detailed and meticulous procedure to remove the public protector.

The public protector herself, or the OPP, must level with the public by acknowledging that it has drawn critical attention that impacts on its duties and responsibilities. Such an acknowledgement must come with the appreciation for the need to adapt the role of the OPP with greater professionalism, investigative competence, astuteness, flexibility and accountability. DM