Opinionista Omphemetse S Sibanda 8 December 2020

High court ruling on Mkhwebane’s ‘rogue unit’ report should throw legal profession into a tailspin

The North Gauteng High Court ruling will, in my view, have a ripple effect across the judiciary, the legal profession and the justice system in general. Among others, the directive that the ruling be sent to the Legal Practice Council to consider Mkhwebane’s ‘shockingly inappropriate and unwarranted’ attack on Judge Sulet Potterill should excite everybody in the legal profession.

“Wholly irrational”; “bereft of any sound legal or factual basis”; failure to undertake “fair and credible investigation”; and that “she allowed her important office to be used to try and resuscitate a long-dead fake news propaganda fiction.” 

These are the strong words used on Monday, 7 December 2020, by the North Gauteng High Court in its ruling against the current Public Protector (PP) Adv Busisiwe Mkhwebane with regard to the conclusion in her report that Pravin Gordhan had established an illegal unit at SARS. 

The PP’s 5 July 2019 report, “On an Investigation into Allegations of Violation of the Executive Ethics Code by Mr Pravin Gordhan, MP as well as allegations of Maladministration, Corruption and Improper Conduct by the South African Revenue Services,” has been a thorn in the side of Mr Gordhan. 

This ruling will, in my view, surely have a ripple effect across the judiciary, the legal profession and the justice system in general. 

The court’s nullification of her report will bring into a different focus, among others, how the public will reflect on last week’s testimony of Minister Pravin Gordhan at the Zondo Commission and the questions posed by Advocate Dali Mpofu with regard to the establishment of the unit at SARS.

For instance, the court held that the conclusion that the SARS unit was established contrary to the National Strategic Intelligence Act (NSI Act) is wrong [Para:291]. Talk about sending the questioning of Adv Mpofu with regard to the SARS unit into a tailspin.

“What this judgment should compel as a matter of urgency is the appearance of Moyane to testify. That should be obvious from this detailed judgment,” retorts the mysterious Professor Balthazar in Daily Maverick.

A Public Protector of reprehensible conduct

Having said the above, and buttressing my argument that this recent ruling by the Pretoria High Court should be understood broadly and not be made only about the PP, I regard the following as talking points following this judgment:

First, the directive by the court that the ruling be sent to the Legal Practice Council (LPC) to consider Mkhwebane’s “shockingly inappropriate and unwarranted” attack on Pretoria High Court Judge Sulet Potterill in the PP’s attempt to contest Gordhan’s review of her report should excite everybody in the legal profession.

Biased Public Protector’s conduct ‘reprehensible’, High Court finds, hands Gordhan comprehensive victory

A number of issues arose out of this referral to the LPC. 

At the tip of my lips is the concern for the deteriorating professional accountability of legal practitioners in South Africa. Also, the effectiveness and pro-activeness of professional organisations such as the LPC, bar associations, law societies, the Judicial Service Commission (JSC), the Magistrates’ Commission and others when it comes to oversight of their members. 

The conduct of some of the legal practitioners in courts and expressions of some judges and magistrates, particularly when it comes to heinous crimes such as rape, should have been a tell-tale sign of the need to reconsider accreditation (professional registration) and/or management of these members of the profession. A code of conduct by itself is not enough.

The gender of judges and magistrates presiding over GBV cases does matter

Second, the ruling may be seen in some quarters as stacking the daggers against Adv Mkhwebane at the parliamentary enquiry into her fitness to hold office, prompting the question: will it be proper and fair for the panel of retired Constitutional Court judge Bess Nkabinde, Dumisa Ntsebeza and Johan de Waal investigating her fitness to hold office to use or make reference to this ruling?

Independent panel named for next step in inquiry into Public Protector’s fitness for office

Already, there are some comments and opinions that this judgment is a nail in the tyres of the Public Protector. It has been labeled thus as signaling “the end of the road” for her. 

Another comment is that “if evidence of this PP’s fitness to hold ‘office’ was in doubt, this judgement should settle this matter!” Worth repeating in this regard is the following question by Professor Balthazar: “First, along with a slew of other judgments that have condemned the competence and conduct of the incumbent of the Office of the Public Protector, this judgment again raises the question of how, in a country with notorious levels of public corruption, Advocate Mkhwebane can continue in such a key office that is dedicated to dealing with public maladministration?”

We should be careful to take it as a foregone conclusion that the PP must be removed from office by the Judge Nkabinde panel, otherwise this will be a predetermined outcome that will be deficient in law. 

Despite the many rulings against her and her nose bloodied many times, the PP should still be considered innocent of incompetence to hold office until this panel decides otherwise. Any approach to the contrary will set a very bad precedent for the Office of the Public Protector.

Our case law is replete with instances where it can be argued that there are others who have been unable to be faithful to the law and maintain professional competence in it.

Third, the ruling and some of the observations by the judges bring into sharp focus the deficient understanding of our political parties and politicians of the law as different from politics. 

The court, for instance, noted that “the Public Protector was supported by the EFF regarding the submission that the Public Protector acted within the ambit of section 6(9) when she received and investigated the complaints despite the age thereof.” [para:31]

However, according to the judges, the EFF (and politicians in general) fails to understand and appreciate the enabling legislation of the Office of the Public Protector and that commissions such as the Zondo Commission operate differently from the ordinary courts. [See para: 32]. This conclusion has bolstered the argument for the unfettered existence of the Zondo Commission and similar others.

Fourth, the court ruling highlighted, in an implied fashion, the fact that the ability of some commissions or commissioners to dispense justice is questionable and increasingly coming under scrutiny. As a country, we must revisit the legislative framework on commissions and redetermine the operational architecture of these commissions.

In an article titled “Reconceiving Commissions of Inquiry as Plural and Participatory Institutions: A Critical Reflection on Magidiwana,” Grant Hoole, vice-chancellor’s postdoctoral research fellow at the University of New South Wales, suggested a reflection on the institutional nature of commissions of inquiry following the Constitutional Court in Legal Aid South Africa v Magidiwana & Others 2015 (6) SA 494 (CC).  

Back to the Pretoria High Court SARS unit ruling: The court confirmed the fact that the Sikhakhane Report will go down in legal history as a discredited report, whose finding is to some degree considered to have been without factual or legal basis – thus responsible for the PP, with regard to the issue of a contravention of section 3(1) of the NSI Act, arriving at conclusions that “are clearly wrong in law and therefore irrational and unlawful”.

Generally, it is assumed that commissions are critical to clarifying, resolving disputed facts, establishing historical records and making policy and legislative recommendations. What we now know is that this is not always the case.

It becomes problematic when a commission is deemed to have acted inappropriately or produced a report that is not credible and objective, and which is not sound in law. Commissions of inquiry function as quasi-judicial bodies. It is thus important that their structure, terms of reference, methodology and procedures are legally sound.

One is not saying that all commissions are bad. There are commissions like the Zondo Commission that have breathed life and legitimacy into our criminal justice system. Yet, the response of the government to commission reports is becoming problematic.

To this end, I am indebted to Hoole who suggested a standing parliamentary committee that can regularly review and report on government responses to inquiry reports: “Rather than fettering governments with a duty to adopt inquiry recommendations, this would ensure that engagement with them is ongoing and transparent, requiring political actors to articulate reasons for departure from the findings they invested significant public resources to reach,” he argued [p254].

How many of us have heard about the “mere legal error doctrine” and pondered if we should not perhaps apply it to the legal battles of the PP? 

As noted by Cynthia Gray (then Director of the Center for Judicial Ethics of the American Judicature Society) in her 2004 article titled “The Line Between Legal Error and Judicial Misconduct: Balancing Judicial Independence and Accountability,” that was published in the Hofstra Law Review, is that “part of the justification for the ‘mere legal error’ doctrine is that making mistakes is part of being human and is inevitable in the context in which most judicial decision-making takes place. 

“It is not unethical to be imperfect, and it would be unfair to sanction a judge for not being infallible while making hundreds of decisions often under pressure.” (p1,246-1,247).

Some mistakes are too costly to excuse. Also, we must not forget to always maintain the distinction between legal error and judicial misconduct. DM

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  • good point about the predicament of senior counsel….the court has pronounced on the truth and unless and until a higher court comes to a different conclusion, Mpofu has to toe the line if he has any respect for the rule of law.

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