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Busisiwe Mkhwebane vs Thandi Modise: The murky legal question of the meaning of misconduct

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

For the second time in eight months, the eyes and ears of both the courts and the public are open to the legal tug-of-war between Busisiwe Mkhwebane and National Assembly Speaker Thandi Modise.

The impeachment of Public Protector Busisiwe Mkhwebane has so far engendered partisan disagreements as to whether her removal is justified or just another victimisation of someone who is doing her job and has touched certain untouchable persons.

For instance, her lawyer, Dali Mpofu SC, would be quick to point to Public Enterprises Minister Pravin Gordhan as one of the untouchables in the hornet’s nest that Mkhwebane touched, and is being made to pay dearly. This has been the narrative by Mkhwebane as she hopes to toss aside any attempt to remove her from office.

In her view, she is being punished for her rulings, and her independence is being undermined when the same hardship is not visited upon judges. For a moment I sympathise with her, as there is a litany of incompetent judgments, some of which one would wish to delete from the law reports given how the judges or magistrates misdirected themselves on the law.

Unfortunately, the centuries-old tradition against impeaching judges for judicial rulings has so far saved some of our judges. The African Ombudsman and Mediators’ Association has sought to introduce draft standards for the establishment and operation of ombudsman offices, with a clear provision that “the Ombudsman may not be dismissed for making decisions that are unpopular with the entities over which it exercises jurisdiction, with consumer or political groupings or the media”.

Those supporting her fight against existential threat may argue that justice for some reason is not blind when it comes to her.

“While ‘justice is blind’, the eyes of the courts remain wide open and so too do its doors to ensure that a process as profound, unprecedented and solemn as that of a removal in terms of section 194 of a head or officer bearer of a hallowed chapter 9 institution is not reduced to a platform for gratuitous vilification or the unlawful action against any person,” said Judge Vincent Saldanha in the matter of Public Protector v Speaker of the National Assembly and Others, delivered on 9 October 2020. Correctly so, as this is the first time in the history of South Africa that the National Assembly had to start a process to remove a head of a chapter 9 institution, and courts having to decide on the nitty-gritty of such a process.

This precedent-setting marathon of cases involves the new impeachment rules that were unanimously adopted by the National Assembly in December 2019. If the meaning of “unanimous” has not changed since the first time I came across the word, it means all political parties represented in the National Assembly saw fit to have these rules and saw no problems with them.

For the second time in eight months, the eyes and ears of both the courts and the public are open to the legal tug-of-war between Mkhwebane and Speaker of the National Assembly Thandi Modise playing itself out in the Western Cape High Court. The first round, infamously characterised as Part A, went to Modise as the judgment saw Mkhwebane failing to interdict section 194 proceedings in the National Assembly. What came out from the Part A judgment, which puts Mkhwebane in a tight corner, is the court noting that section 57(1) of the Constitution, among others, empowers the National Assembly to make rules as part of its obligations to oversee organs of state.

In both Part A and Part B of this spectacle, the Public Protector attacks the lawfulness of the process and the content of the new internal rules made by the National Assembly aimed at providing further details on the grounds to remove heads of chapter 9 institutions, as the Constitution prescribes.

The phrase “as the Constitution prescribes” is exactly what Mpofu is loosely using to mount a defensive attack on the Mkhwebane impeachment process during the Part B, which is under way. Mpofu seeks, on behalf of Mkhwebane, to nullify the National Assembly’s synthesis of grounds of impeachment under the new impeachment rules. Mpofu faces the challenge of dancing around a determination by Judge Saldanha during Part A proceedings, who observed that the National Assembly has a prerogative to set up internal rules and processes dealing with the details of the grounds for removal of heads of chapter 9 institutions.

It is clear from the documents containing the most important parts of the arguments by the parties – what lawyers call heads of argument – that this case will keep us entertained. For instance, the National Assembly is accused of plagiarism in the form of passing off as its own, or a cut-and-paste of, what the Public Protector alleges is essentially the DA’s draft rule.  

Interestingly, Modise alleges that Mkwhebane has little understanding of the applicable law and rules, including having a wrong interpretation of the Constitution and some of the case law she is using to support her case to nullify the impeachment. The Public Protector’s alleged misdirection, misunderstanding and wrong application of the law is fast becoming her long-standing Achilles heel.  

As previously opined, several judgments in the past ruled against her, with some giving her tongue lashings about her alleged misunderstanding and wrong application of the law. The report of the independent panel of experts – retired Constitutional Court Judge Bess Nkabinde and senior advocates Dumisa Ntsebeza and Johan de Waal – regarding her fitness to hold office also detailed a catalogue of the Public Protector’s losses in court. 

The Public Protector having as the main argument that the National Assembly is trying to use the back door to ‘amend’ the Constitution’s provisions relating to her removal from office, may be a self-defeating strategy, no matter how persuasively Mpofu argues it. The argument, on the face of it, contains defeaters for some of its defensible lines. Gross misconduct as a ground forming part of the standard for removal favours Mkhwebane instead of simple ‘misconduct’. 

On addressing the issue of unconstitutionality and retrospective application of laws and rules so vehemently canvassed by Mpofu – in the high court, Pienaar Brothers (Pty) Ltd v Commissioner for the South African Revenue and Another (GNP), unreported case no 87760/2014 of 29 May 2017 – the question, among others, was whether the enactment of retrospective legislation offends against the principle of legality and the rule of law which lies at the heart of our constitutional dispensation.

Judge Hans Fabricius held that the real question is: What is the standard by which the constitutional validity of retrospective legislation should be judged? The court considered as part of this standard the “rationality” test in terms of section 1(c) of the Constitution. The second one would be the standard of “reasonableness” or “proportionality” in terms of section 36(1) of the Constitution.

There are no holy cows when it comes to litigation. Modise commits the same mistake of misdirection of the law and misunderstanding of the provisions of the Constitution; the same sin she accuses Mkhwebane of having committed. “Like chapter 9 office bearers, judges may be removed from office by a resolution of the NA on grounds similar to those in section 194,” said Modise [Par:17]. This is incorrect. Section 194(1) of the Constitution provides removal of heads of chapter 9 institutions “only on (a) the ground of misconduct, incapacity or incompetence”. On the other hand, section 177(1) provides for the impeachment of judges only if “the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct”. 

Modise could not have been more wrong. The two standards of removal are not the same. There is a higher standard of evaluation of the misconduct of a judge to secure removal. A case of gross misconduct should be made against a judge.

On the other hand, one needs only to prove “misconduct” on the part of the Public Protector. Misconduct and gross misconduct can converge sometimes. Gross misconduct as a ground does include a consideration of the severity of the misconduct, but mere misconduct as a ground does not require the finding of the grossness of the conduct.

For instance, misconduct involving acts of moral improbity such as bribery, murder, falsifying work documents, and other acts of dishonesty is the most serious and can be considered gross misconduct. If one considers this explanation, the accusation of Mkhwebane having lied to the courts over her South African Reserve Bank investigation report may be considered an act of gross misconduct.

There are also types of conduct that involve either acts which, for instance, violate the Code of Judicial Conduct, or other undesirable but legal acts such as drunkenness and failure to meet known work standards that may amount only to misconduct. In the issue of Judge Nkola Motata, the Judicial Service Commission declined to remove him from the Bench because his public drunkenness and consequent actions, including his racist remarks, did not amount to the standard of gross misconduct required under section 177(1)(a) of the Constitution that deals with the conduct of judges.  

The Speaker argues that adding the phrases “intentional” and “gross” to misconduct to the new rules, for example, was merely to operationalise the ground for removal. Mpofu will have none of that because, in his view, introducing definitions for misconduct, namely “gross” and “intentional”, and a phrase such as “sustained” and “demonstrated” incompetence is not what section 194(1) intended. The meaning of “misconduct” to remove the Public Protector will thus be a point of contention. 

That said, it is important to note the use of the word “only” in both section 194(1) and section 177(1) supporting the argument by Mpofu that the grounds listed in the subsections of the two provisions are the sole grounds upon which the Public Protector and the judge respectively must be removed from office and nothing else can be used as a ground of removal.

The Public Protector having as the main argument that the National Assembly is trying to use the back door to “amend” the Constitution’s provisions relating to her removal from office, may be a self-defeating strategy, no matter how persuasively Mpofu argues it. The argument, on the face of it, contains defeaters for some of its defensible lines. Gross misconduct as a ground forming part of the standard for removal favours Mkhwebane instead of simple “misconduct”. 

But, being the legal eagle he is, Mpofu knows that the art of advocacy is also to capitalise on the errors or careless mistakes of the opponents. And he did capitalise on what he called a mistake by drafters of the new rules to make them retrospective: “If it does not say it is retrospective, it is not retrospective… It is a basic, basic mistake, but a fatal one,” he said.

If the Public Protector successfully argues in court that the grossness or not of her conduct should not be considered, then one needs to prove “misconduct” to impeach her instead of the stricter standard of “gross misconduct”. As Modise correctly said, “it would follow from her objection that she considers misconduct, which is not intentional or grossly negligent, to be sufficient for her removal”.

Perhaps, concerning this argument, the Public Protector is advocating the demonstration of high ethical and professional standards demonstrated by holders of the office to an extent that simply misconduct will secure removal from office. Very interesting! If that is the case, the Western Cape High Court can simply direct that the National Assembly drop the word ‘gross’ in its new rules. Also, the court may simply direct the drafters of the new rules to “cure this defect” of not having made them expressly retrospective.

In the end, this will amount to a Pyrrhic victory for Mkhwebane. It must be said, however, that the National Assembly indeed blundered when it introduced the word ‘gross’ into its new rules in the manner it did because it creates in the eyes of superficial readers that it is now employing the standard applicable to judges under section 177(1) of the Constitution.

A plausible opinion that can be formed with regard to this case before the Western Cape High Court is that it is either another Stalingrad dilatory tactic, particularly when it comes to the issue of understanding the level of misconduct required to remove the Public Protector, or a selfless attempt to make arguments intended to uphold and protect some important legal principle. The latter possibility may be difficult to fathom because employing delays in the litigation or criminal justice processes seems to have become the main defence strategy legal practitioners employ to benefit their clients.

My parting word comes from the Constitutional Court in the matter Economic Freedom Fighters v PJ Gordhan & Others,  judgment delivered on 29 May 2020, when it emphasised that “the Public Protector is a constitutional servant like the courts and her office should be afforded respect”.

As the saying goes, respect is earned. And the only way for the Office of the Public Protector to earn respect is to turn around the unending string of cases lost and find misdirection of the law by the Public Protector. If we need chapter 9 institutions to command allegiance, they must first command respect. In this instance, the Public Protector, together with her legal team led by Mpofu, has crossed the Rubicon, and the outcome of the case under way may mark the defining moment for her. DM

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  • As a lay person, an excellent analysis of how in the hands of ‘legal eagles’, the judicial system can be used (or is it abused?) to secure ‘outcomes’ that do not serve the interests of ‘justice’ but the law as is written … and not necessarily intended! Surely repeated errors of law (as in several judgments handed down) constitute a degree of ‘grossness’ of misconduct ?

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