Stumbling backwards shouting progress – De Vos unstitches Public Protector

CAPE TOWN — Our controversial new Public Protector, Busisiwe Mkhwebane seems to stumble from legal faux pas to legal faux pas, the latest being in her somewhat suspicious pursuit of Pravin Gordhan, as outlined by Constitutional law fundi, Professor Pierre de Vos here. While de Vos stays away from speculating on her motives, he’s convinced she’s both unprofessional and dishonest in going after Gordhan and proceeds to describe exactly why in law. Overstepping the boundaries of her prescribed role seems to be the norm for Mkhwebane. First, we had her presuming to tell the Reserve Bank what to do about the apartheid-era Absa bailout matter and now she’s firing off shaky subpoenas to Gordhan, falsely accusing him of not responding to earlier requests for information. There can only really be two non-exclusive options. Either she’s sympathetic to, or in service of the ANC’s Zuma faction and/or she’s legally not up to the job. The High Court has already found that she doesn’t fully understand her constitutional duty to be impartial and function without fear, favour or prejudice. Does she really have to keep reminding us? Enjoy this legally clinical interpretation of the latest machinations of our dysfunctional “Public Protector.” Published first on the Daily Maverick. – Chris Bateman

By Pierre de Vos*

In June 2017, Julius Malema, leader of the Economic Freedom Fighters (EFF), confessed that the party had “made a terrible mistake” to support the appointment of Busisiwe Mkhwebane as Public Protector. (Mr Malema does not appear to be a particularly good judge of character as he previously also apologised for supporting Jacob Zuma.)

Pierre de Vos
Pierre de Vos

As it turns out, this confession was well made, as the High Court found a few months later that the Public Protector “does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice” and does not appreciate that her office requires her to be honest.

Unfortunately, some of her recent actions have raised further worries about her impartiality, knowledge of the law, and honesty. Because these actions relate to her decision to subpoena Public Enterprises minister, Pravin Gordhan, to answer questions about the granting of early retirement to former SARS acting Commissioner, Ivan Pillay, some politicians may prefer to ignore this new evidence that Mkhwebane is not fit for office.

Gordhan has made powerful enemies within and outside the governing party, partly because of his haughty manner, but largely because of his ruthless clean-up of state-owned enterprises which has the looters and their political backers running scared and fighting back.

In a recent column, Daily Maverick’s Professor Balthazar delves into the politics of the matter, pointing out that the Public Protector recently told a court that she had not investigated senior politicians like Ace Magashule implicated in the looting of public funds in the Free State because of a complete lack of resources, yet has funds to pursue a case that, at best, appears to be inconsequential and legally weak.

However, I will leave the politics of the matter to others and, instead, will focus on the legal issues surrounding the latest moves against Gordhan to illustrate that the Public Protector is still struggling to grasp the extent and limits of her powers and continues to act in ways that cast doubt on her honesty.

In response to criticism of her recent move against minister Gordhan by some of minister Gordhan’s supporters, her office tweeted that she had written to minister Gordhan four times between February 2018 and July 2018, requesting a response to the allegations levelled against him.

File Photo: Jacob Zuma receives a courtesy call from Public Protector Busisiwe Mkhwebane at his Mahlamba Ndlopfu residence in Pretoria. It was their first meeting since her appointment.

“When the responses were not forthcoming, she issued a subpoena.”

As it turns out, this claim was at best misleading and at worse false. Tebogo Malatji, minister Gordhan’s lawyer, pointed out that hhad responded to the Public Protector on behalf of the minister, asking to be provided with the particulars and evidence of the alleged dishonesty and impropriety on the part of minister Gordhan that is being investigated.

Section 7(3)(a) of the Public Protector Act states that the Public Protector may, at any time prior to or during an investigation, request any person to assist her with an investigation.

The Act does not impose a legal duty to respond to such requests by the Public Protector, but sections 23 to 25 of the Rules Relating to Investigations by the Public Protector and Matters Incidental Thereto do purport to impose legal duties on state officials to co-operate with the Public Protector. However, these rules were promulgated in September 2018, which means they were not in effect when the Public Protector requested the minister to respond to allegations made against him and do not apply in this case.

Read also: Ed Herbst: The Browse Mole, Public Protector and a little shaft of light

The main weapon the Public Protector has at her disposal to obtain evidence from a witness or from an implicated person is her power to subpoena individuals. This power does not relate to preliminary investigations and cannot be used to force an individual to testify before a decision is taken to start a proper investigation. However, it is clear from sections 20 and 21 of the rules quoted above that the Public Protector may conduct a preliminary investigation – although her powers during this stage of the proceedings are limited.

Nothing in the Act or the rules permit the Public Protector to subpoena a witness during the preliminary investigation and limits it to cases where the Public Protector is in fact “conducting an investigation”. Once a decision is made that a full investigation will be conducted (after a preliminary investigation), the Public Protector can use her power of subpoena to great effect.

Read also: Open letter to the Public Protector: Madonsela’s shoes proving too big for you

This power is contained in section 7(4)(a) the Public Protector Act (read with section 5 of the Act) and empowers the Public Protector “to direct any person to submit an affidavit or affirmed declaration or to appear before him or her to give evidence or to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated”. Section 5 states that:

“A direction referred to in subsection (4)(a) shall be by way of a subpoena containing particulars of the matter in connection with which the person subpoenaed is required to appear before the Public Protector and shall be signed by the Public Protector and served on the person subpoenaed either by a registered letter sent through the post or by delivery by a person authorised thereto by the Public Protector.”

As the subpoena power is a powerful weapon that could easily be abused, certain safeguards are built into the Act to protect individuals against the potential abuse of power by the Public Protector.

Thus, section 7(8) of the Act states that any person appearing before the Public Protector after being subpoenaed may be assisted at such examination by an advocate or an attorney “and shall be entitled to peruse such of the documents or records… as are reasonably necessary to refresh his or her memory”. This right to peruse documents before appearing before the Public Protector is confirmed by section 16(4) of the rules.

This is where it gets odd. The Public Protector has claimed that her engagement with minister Gordhan is a “preliminary investigation” and that “her office has no evidence implicating minister Gordhan of any wrongdoing”. In her most recent press statement she states that “[t]he investigation into the alleged conduct of minister Gordhan is therefore at a preliminary stage”, which is (deliberately?) ambivalent as it could either mean that no decision has been taken to actually investigate minister Gordhan (and this is just a preliminary investigation to decide that), or that the formal investigation is proceeding but is at a preliminary stage.

Be that as it may, either the Public Protector lied when she claimed this was still a preliminary investigation, or she has abused her subpoena power by forcing the minister to appear before her in a matter that is still at a preliminary stage and on which she has no evidence of wrongdoing on his part.

If this is a preliminary investigation as the Public Protector claimed, she is not legally permitted to subpoena the minister to force him to answer questions. It would constitute a grave abuse of power for her to use her subpoena power if she has not completed a preliminary investigation yet.

She is also not permitted to subpoena the minister without providing him with particulars of the allegations against him and all relevant documents on which she relied to decide to proceed with an investigation.

This is an important safeguard to prevent the Public Protector from abusing her subpoena power to go on a fishing expedition. If you do not know what the allegations are that you are being investigated for and if you are not provided with the relevant documents on which the Public Protector relied to make a decision that a full investigation was warranted, the subpoena power could be abused to harass and humiliate individuals who may not be implicated in any wrongdoing at all.

It is therefore clear from the Act and the relevant rules that the Public Protector is not permitted to subpoena the minister to force him to answer questions under oath unless she has decided to investigate him. If she has decided to investigate him and subpoenaed him, she is legally obliged to provide him with the particulars of and evidence of the alleged dishonesty and impropriety for which he is being investigated. If Mr Malatji is correct that this information was never provided, the Public Protector is in breach of the legislation governing her office.

There is one further unseemly twist to this sorry saga. After Mr Malatji pointed out that it was false for the Public Protector to claim that no response was forthcoming from Gordhan after the initial request, the Public Protector further muddied the waters by issuing a statement that looks suspiciously as if it was drafted with the specific aim of misleading the public.

In her follow-up statement she again states that “the minister [sic] failed to provide the Public Protector with a response to these allegations as requested in the preceding correspondences”. This claim is misleading as the minister did respond to the request, albeit through his legal representative. The statement contains the following paragraph that appears to be aimed at fudging the issue and to cover up the initial misleading statement:

“Regarding the use of attorneys and advocates during appearances before the Public Protector, the law provides for legal assistance and not legal representation. This means that attorneys or advocates cannot speak on behalf of the person appearing before the Public Protector.”

This is an odd claim for a lawyer to make because it appears to state the obvious. A bit like a professor making a statement that a student only passes a course if she obtains a pass mark.

Legal representatives do not testify on behalf of their clients. They represent them, among other things by corresponding on behalf of their clients. To the extent that this non-sequitur was included in the statement to suggest that minister Gordhan’s lawyer was not legally entitled to correspond with the Public Protector on behalf of his client, the statement is deliberately misleading.

It may well be read as a ham-handed attempt to create the false impression among ordinary citizens not versed in the law that minister Gordhan’s lawyer was not permitted to respond to the Public Protector on his behalf and hence that the initial statement from the Public Protector that “responses were not forthcoming” was not the outright lie that it may appear to have been.

I have no idea what will come of this investigation, whether a finding will be made against minister Gordhan, or whether a court will review and set aside any such finding. Neither can I say with absolute certainty that facts may not be uncovered to implicate minister Gordhan in wrongdoing of some sort. But what I can say with firm conviction is that the Public Protector has been acting in an unprofessional and less than honest manner in pursuit of the minister. DM

  • Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled ‘Constitutionally Speaking’, in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.