Like Rip Van Winkle, the Public Protector has woken from her slumbers and produced an unusually comprehensive report (judged by the “Busisiwe Mkhwebane” standards) in which she has finally concluded that all was not legally well with the notorious Estina Dairy project. The prize – Magashule and members of his Free State executive should be given training on accountability, which is similar in effect to appearing in front of the ANC’s integrity committee! In fairness, the Public Protector has stated that her report should be taken into account by the NPA, which is conducting an investigation into the Estina project. And that does hold significance.

Magashule will doubtless use the numerous judgments against the Public Protector to seek to review the report. And there’s the rub – even if Busisiwe Mkhwebane has produced a justifiable report, so long as she remains in office, the important role of the Public Protector will be compromised.

Consider developments over the past few weeks alone.

She has been charged by the NPA with three counts of perjury, which stem from allegations that she lied under oath in respect of reports she produced against the South African Reserve Bank (SARB) and Absa. She has to appear in court in January. That alone should have justified her being suspended on full pay until and unless the court issues a judgment in her favour.

The Constitutional Court has also weighed in. The appeal involved the Public Protector demanding access to the tax records of Mr Jacob Zuma. But s69(1) of the Tax Administration Act provides that a person who is a current or former SARS official must preserve the secrecy of taxpayer information and may not disclose taxpayer information to a person who is not a SARS official. The Constitutional Court held that the Public Protector “cannot wish section 69(1) away. She should have brought a direct frontal challenge to the constitutionality of the section for including her office within its sweep, or to the Tax Administration Act for failing to include the office in the exceptions it creates.”

It followed that, absent such a challenge to s69(1), there were no prospects of success on appeal. However, the high court had ordered the Public Protector to personally pay 15% of the costs incurred by SARB and Absa. 

Here the Constitutional Court made some important observations:

“Such punitive costs orders are justified if the conduct of public officials ‘showed a gross disregard for their professional responsibilities, and where they acted inappropriately and in an egregious manner’. As to the first, i.e. conduct showing a gross disregard of professional responsibilities, it is to the prescripts – be they imposed by the Constitution, statutes, ethical rules or code of conduct – governing the conduct of the office, the exercise of powers and performance of functions of the office that we must look. What constitutes inappropriate or egregious conduct depends on the circumstances of each case and is something to be determined by the court on an objective basis. To grant such an order ‘the deviation must be reprehensible or egregious or it must constitute a gross disregard of professional responsibilities’.”

The facts did not justify such a finding. Incompetence without more is insufficient to justify such a personal punitive cost order.

Hard on the heels of this judgment came another delivered by a full Bench of the Gauteng High Court. The case involved a review of the Public Protector’s report on the question of Ivan Pillay’s premature retirement from SARS with full pension benefits and his subsequent retention. Yet again the Public Protector was unable to show compliance with s6(9) of the Public Protector Act, namely that she cannot entertain a complaint unless it is reported within two years from the occurrence of the incident save where special circumstances, within her discretion so permit. Ah, said the Public Protector the impoverishment of the public purse continues due to payments made to Mr Pillay. But that was an argument never raised when the Public Protector made the decision to investigate Pillay’s retirement, an event that occurred in 2010.

As the court said: “The fact that the Public Protector dealt with this issue in this haphazard manner is an indication to us that she failed to understand this fundamental jurisdictional requirement or she simply ignored it from the outset.”

Strictly, that should have been it. But the court went on at great length to deal with the merits of the review. The unsurprising conclusion was that the report had to be set aside. And that raised the question of costs. The court carefully absorbed the judgment of the Constitutional Court and thus refused to make a personal cost order against the Public Protector, although it made a punitive cost order against her office. It also made a punitive cost order against Minister Gordhan in respect of the successful striking out of insulting remarks made in his affidavit about the Public Protector.

Within the month of December alone, the Public Protector has clocked up a series of perjury charges, an adverse judgment on the merits from the Constitutional Court and, together with the Pillay judgment, another earlier one (on 7 December) from the High Court Gauteng, which set aside her report on the so-called rogue unit, and in which Advocate Mkhwebane was ordered to pay 15% of the applicant’s costs. This set of achievements  brings us back to Ace Magashule. He will no doubt exploit the vulnerability and consistent failure of the Public Protector to “get the law right” as he seeks to defend himself. And for that alone, we need an incumbent to the Office of the Public Protector who can consistently fulfil her mandate in a legally justifiable manner. DM