Yet another day, yet another defeat in the courts for the Public Protector and her counsel Dali Mpofu SC.
In the latest in an episode of this long-running litigation saga, the Public Protector sought the review of decisions by the chairperson of the s194 (1) Committee, inquiring into her fitness for the Office of the Public Protector, to dismiss recusal applications of the chairperson and a member of the Committee, Mr Kevin Mileham.
The Public Protector contended that the decisions of the chairperson and Mr Mileham not to recuse themselves was in breach of the Promotion of Administrative Justice Act, alternatively, the principle of legality. In her view, the decision to refuse recusal was unconstitutional, unlawful, irrational and invalid.
In particular, in keeping with Tolstoy’s War and Peace method of drafting these applications, the recusal of the chairperson was sought on 12 grounds, including that the s194 inquiry had extended beyond allegations in respect of which the independent panel chaired by Justice Nkabinde had grounded their justification for an impeachment inquiry of Advocate Busisiwe Mkhwebane to be undertaken.
In addition, the Public Protector contended that the chairperson refused to subpoena President Cyril Ramaphosa, on the basis of relevance, showed undue favours granted to the evidence leaders while the chair had adopted “an impatient and oppositional stance toward the applicant and her legal representatives”.
The case against Mr Mileham was that he was married to Ms Natasha Mazzone, the Democratic Alliance MP who was the complainant in the matter against the Public Protector, and that Mr Mileham had displayed a distinctively hostile attitude towards the Public Protector.
It would appear that in oral argument the court was royally entertained by references to judgments that bore very little resemblance to the case initiated by the Public Protector. For example, great emphasis was placed by Mr Mpofu on the decision of the Constitutional Court in Bernert v Absa Bank fought for his submission that the Public Protector should not be obliged to wait until the end of the inquiry before lodging an application for recusal.
As the court correctly noted in respect of the Bernert judgment, the key question in Bernert was not that the litigant had failed to apply for the recusal of judges during the proceedings, but that he had chosen only to raise the issue later on appeal.
In the Public Protector’s case, the question was whether it was justifiable to raise the issue of recusal during the course of the proceedings, or, as the Latin term suggests, in medias res.
Further, as the Constitutional Court emphasised in Bernert, the person who apprehends bias and the apprehension of bias must be “reasonable”.
A formidable burden rests upon a litigant who alleges bias or apprehension thereof:
“The idea is not to permit a disgruntled litigant to successfully complain a bias simply because the judicial officer rules against him or her, nor should litigants be encouraged to believe that by seeking the disqualification of the judicial officer that they will have their case heard by another judicial officer who is likely to decide the case in their favour.”
The court in the Public Protector’s case had made broad and sweeping averments and produced no justifiable evidence for her to discharge the formidable burden placed upon her.
Further, the court concluded “she has not shown the existence of grave injustice or any harm that may have been suffered by her will be material or irreversible if the committee is permitted to proceed with its task”.
As an additional example of legal obfuscation which confronted the court, it was required as a result of argument to decide whether the dispute should be determined both on the principle of legality and under the provisions of the Promotion of Administrative Justice Act.
Manifestly, as the court noted, for the Promotion of Administrative Justice Act to be operative, the applicant had to discharge the requirement that proceedings were of an administrative nature. But as the court correctly noted, “the decision of the committee whether to recommend removal of the applicant in due course will be taken in its capacity as a committee of Parliament and it is the latter which is duty bound in the performance of its constitutional obligation to maintain oversight over organs of State”.
It recommends; it does not decide.
Regrettably, much of the judgment appears in the form of a set of brief conclusions rather than reasoned justifications for the conclusions ultimately reached. In the final analysis, the only issue which should have given the court some concern (and it did) was the issue as to whether the Public Protector should be mulcted with a personal costs order for having committed yet another abuse of process.
The court was arguably generous in this regard.
Accordingly, the Public Protector was only ordered to pay the costs of the suit. Whether this is to be paid by the office of the Public Protector or the suspended incumbent is not clear from the judgment.
A pertinent fact set out in the judgment is, as the court noted, the transcript of the committee proceedings exceeded 60,000 pages (presumably by 13 March 2023).
Doubtless, it will not be long before the transcript exceeds 100,000 pages. It raises at least two questions, being the relevance of much of this transcript and, secondly, the motivation for ensuring that these proceedings continue interminably.
The hearing is before a committee of Parliament in terms of s194 of the Constitution. It is solely required to determine if there are grounds for the removal of the Public Protector.
Ultimately, the decision regarding impeachment must be taken by the National Assembly and adopted by a vote of at least two-thirds of the members of the Assembly. But the proceedings are in the form of hotly contested litigation. And there is no end in sight in respect of this inquiry or the cost. According to the report of 24 March, the Public Protector’s legal costs alone have exceeded R24-million.
Let us be clear: the conduct of the chair, Mr Qubudle Richard Dyantyi, in dealing with the s194 proceedings has been more than commendable. Indeed, he has acted with great skill, patience and care in the manner in which the proceedings have been conducted under the most difficult of circumstances.
It does appear, however, that if one can employ taxpayers’ money and rush to court in respect of ill-considered applications – such as that which was now dismissed by the full Bench of the Cape High Court – proceedings can be extended almost indefinitely and certainly beyond September.
This is the cut-off point at which time the Public Protector’s term of office will conclude. Impeachment proceedings could continue thereafter because they will have implications for her benefits upon the termination of her office as Public Protector. The working assumption is doubtless one that, once she is no longer the Public Protector, enthusiasm for these proceedings will diminish significantly.
Further cynical attempts at the manipulation of the legal system continue to be employed by Jacob Zuma.
Yet again his trial has been postponed, this time until August, so that he can bring yet another application for the removal of Advocate Billy Downer SC as the lead prosecutor.
It is evident that Zuma is determined never to see his day in court and that he will exploit every legal crevice to ensure that consequence.
In short, both the Public Protector, through the s194 inquiry, and Mr Zuma, in the manner in which he has sought to postpone his criminal trial indefinitely, have tested the legitimacy of the legal system, and, sadly, it has been found wanting. Simply put, cases cannot be brought to conclusion. A determined litigant, particularly one financed by taxpayers, can ensure that justice is indefinitely delayed.
That the Zuma trial has been postponed by the decision of the presiding judge who, until that point, had done a commendable, expeditious job in trying to progress the case, is yet another opportunity for Mr Zuma to succeed in his Stalingrad campaign.
Whether it be through the imposition of punitive costs against counsel who argue unsustainable legal points, or a more diligent guard against incessant appeals and the most parsimonious approach to rescission applications, particularly before the Constitutional Court, the legal system has to grapple with how it can prevent these abuses which only contribute to the degrading of its legitimacy. DM