The Public Protector finds herself in a very difficult place and people who tell journalists that you have to tell both sides of the story must be reminded that this is the post, once held by the formidable Thuli Madonsela, the person who is supposed to make sure that our Constitution and all the people governed by it, is protected and who made sure that President Jacob Zuma was held accountable for Nkandla. The present holder of the position, Busisiwe Mkhwebane has been accused of lying under oath and of acting in bad faith by the respected highest court in the land, the Constitutional Court. The shame and disrepute that it has brought to her post, should be enough for her to hang her head in shame and to resign. Bloomberg says she is fighting for survival and the Daily Maverick is asking whether Parliament would axe her. The problem that the country faces, is that she can only be removed by Parliament if two-thirds of members supported it and with the Economic Freedom Fighters and the Zuma faction in the ANC on her side, it could be difficult to achieve. If Parliament can’t get a two-thirds majority she would be coming out with reports that will be noticed less and less by the media and wasting money on court cases as her reports are challenged in court. She could limp on like the knight in Monty Python’s Holy Grail who has lost both his arms in a dual, shouting to President Ramaphosa and Minister Pravin Gordhan, “It’s just a flesh wound… come I’ll bite your leg off.” – Linda van Tilburg

Now that the ConCourt has found the Public Protector both dishonest and incompetent, will Parliament axe her?

By Pierre de Vos*

On Monday 22 July South Africa’s Constitutional Court dismissed an appeal by Public Protector, Busisiwe Mkhwebane, against a High Court judgment that awarded punitive costs against her in her personal capacity.

In normal circumstances, it would not be unusual for a court to overturn a decision by an independent body such as the Public Protector. While having your report reviewed and set aside by the court would obviously be embarrassing, it would normally provide no justification to have the Public Protector removed from office.

But the behaviour of the Protector during the South African Reserve Bank investigation (and afterwards during the court review) was in no way “normal”. The mistakes, misinterpretations of the law and misrepresentations made to the court were done in bad faith and in a fundamentally dishonest manner.

It is exactly to punish the Public Protector for failing to meet “the standards expected of a Public Protector in light of her institutional competence” that the personal and punitive cost order was granted. As Justices Khampepe and Theron (for the majority) explained:

“Personal costs orders constitute an essential, constitutionally infused mechanism to ensure that the Public Protector acts in good faith and in accordance with the law and the Constitution. The imposition of a personal costs order on a public official, like the Public Protector, whose bad faith or grossly negligent conduct falls short of what is required, vindicates the Constitution.”

It is only in the most exceptional circumstances, when a litigant has acted in a way that is truly beyond the pale, that personal cost orders are granted. As the majority explained:

“Over the years, courts have awarded costs on an attorney and client scale to mark their disapproval of fraudulent, dishonest or mala fides (bad faith) conduct; vexatious conduct; and conduct that amounts to an abuse of the process of court… The punitive costs mechanism exists to counteract reprehensible behaviour on the part of a litigant on the principle that costs on an attorney and client scale are awarded when a court wishes to mark its disapproval of the conduct of a litigant… A punitive costs order is justified where the conduct concerned is ‘extraordinary’ and worthy of a court’s rebuke.”

It is impossible in an article like this to highlight all the incidences where the Constitutional Court confirmed the adverse findings made by the High Court regarding Mkhwebane’s competence and honesty. There is simply not enough space to do so here. Moreover, as the Constitutional Court judgment confirms the findings against Mkhwebane made in the High Court judgment, the two judgments should be read together to understand the full impact of the court judgments on Mkhwebane’s credibility.

Luckily, the Constitutional Court summarised the findings of the two courts in the following two passages. First, the Constitutional Court summarises the High Court judgment as holding that:

“The Public Protector had acted in bad faith; did not fully understand her constitutional duty to be impartial and perform her functions without fear, favour or prejudice; had failed to produce a full and complete record of the proceeding…; and had failed to fulfil her obligation to be frank and candid when dealing with the court.”

A failure to be frank and candid is judicial speak for lying, for being a liar, for acting in a dishonest manner, and for misleading the court. Later, the Constitutional Court revisits the question of Mkhwebane’s lack of honesty:

“Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous ‘misstatements’, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report.”

One of the most telling aspects of the judgment deals with the Public Protector’s actions after it came to light that she had secretly met the Presidency and the State Security Agency.

On the latter, the Constitutional Court remarks at some point that the “Public Protector’s explanation of the meeting with the State Security Agency is not only woefully late but also unintelligible”. A few paragraphs later, after providing the Public Protector’s explanation, the majority’s exasperation with the Public Protector’s version of events shines through when the court says about one such explanation: “With due respect to the Public Protector, this makes no sense”.

On the secret meetings with the Presidency, the Constitutional Court is also scathing. During the litigation, the Public Protector provided three different explanations for this failure, but none of the explanations appears to have been truthful, leading the Constitutional Court to conclude that: “Despite three successive explanations for the… meeting with the Presidency, the Public Protector still has not come clean and frankly explained why the meeting was held.”

The Court rejected the claim that these were merely “innocent” mistakes. But even if they were “innocent” mistakes, the disturbing part of it is that they form part of an entire “basket of ‘mistakes’.” Instead, the Public Protector “has not been candid about the meetings she had with the Presidency and the State Security Agency before she finalised the report” — the personal punishing cost order was therefore warranted “because she acted in bad faith and in a grossly unreasonable manner”.

The Constitutional Court judgment is so devastating exactly because it contains a binding and final judicial pronouncement that the Public Protector is dishonest and also incompetent. The incompetence to investigate in a professional, efficient and impartial manner is summarised in the following passage:

“The Public Protector’s entire model of investigation was flawed. She was not honest about her engagement during the investigation. In addition, she failed to engage with the parties directly affected by her new remedial action before she published her final report. This type of conduct falls far short of the high standards required of her office.”

What is to be done? It is clear that the Constitutional Court judgment has destroyed the Public Protector’s credibility. Even in cases where the Public Protector acts in an honest and impartial manner, doubts about the veracity of a report will remain because of the reasonable apprehension of bias and incompetence created by the Constitutional Court judgment.

Many people in the Public Protector’s position would have resigned in an attempt to protect the office of the Public Protector against the inevitable lack of legitimacy and credibility. Some might also have resigned to try to save face. If the Public Protector chooses to stay on, it will fall to the National Assembly to remove her from office.

Two problems arise here. First, there is a possibility that the existing rules of the National Assembly to remove the Public Protector from office are not adequate and may contain an unconstitutional gap. In the second EFF judgment, the Constitutional Court held that the failure by the National Assembly to make rules regulating the removal of a president through impeachment constitutes a violation of section 89 of the Constitution and is invalid.

The impeachment provision in section 89 is not dissimilar from the section 194(1) of the Constitution which provides for the removal of the Public Protector from office. This section states that:

“(1) The Public Protector, the Auditor-General or a member of a Commission established by this Chapter may be removed from office only on (a) the ground of misconduct, incapacity or incompetence; (b) a finding to that effect by a committee of the National Assembly; and (c) the adoption by the Assembly of a resolution calling for that person’s removal from office.”

In the second EFF judgment, the Court held that the rules required a special procedure to determine the factual question of whether any of the grounds for removal are present. Similarly, the rules may have to provide for a special procedure to determine whether the Public Protector is guilty of misconduct, incapacity or incompetence. If this is correct, no removal would be possible until the rules are changed accordingly.

Given the Constitutional Court judgment, any credible factual inquiry will find that the Public Protector is incompetent and is guilty of misconduct. But that would not be the end of the matter as it is far from clear that such a finding will move the required two-thirds of the members of the National Assembly to support a motion for her removal.

While the first inquiry is supposed to be an objective and non-political process, the vote in the National Assembly is a political vote. There is nothing that prevents more than one-third of the members of the Assembly to vote against removal of the Public Protector despite the fact that she has been found guilty of incompetence and misconduct.

If the Public Protector does not resign and if members of the National Assembly decline to remove her from office, the Public Protector will limp on like a badly wounded soldier. She will make regular public statements believed by few, write reports trusted by even fewer, and impose remedial action that will, predictably, be challenged in the courts while a group of people will continue to loudly sing her praises despite the fact that she is dishonest and incompetent (or perhaps because of it). 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.

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Ax hovers over South Africa’s controversial graft ombudsman

Scathing rebuttal

The judgment came a day after Ramaphosa issued a scathing rebuttal of Mkhwebane’s finding that he violated the constitution and executive ethics code when he misled lawmakers about a campaign donation. The president said he would seek an urgent judicial review.

Ramaphosa insisted he didn’t know about the R500,000 ($36,000) payment made to his campaign to win control of the ruling African National Congress, inadvertently failed to disclose it and rectified his mistake as soon as possible. The Public Protector’s ruling was “fundamentally and irretrievably flawed,” he said.

The ANC said in a statement that it had full confidence in Ramaphosa, who showed “unwavering commitment and determination to fight all forms of corruption and malfeasance.”

Gordhan, who Ramaphosa appointed to stamp out rampant graft at state companies, has filed lawsuits challenging Mkhwebane’s findings that he oversaw an illegal intelligence unit at the national tax agency more than a decade ago and illegally approved the early retirement of one of its top officials when he was finance minister.

‘Unsuitable occupant’

While the main opposition Democratic Alliance made the complaint against Ramaphosa, it has also petitioned parliament to probe Mkhwebane’s fitness to hold office.

National Assembly Speaker Thandi Modise has referred its request to the legislature’s justice committee to decide whether an inquiry is necessary. Should it decide to proceed, it would have to hold hearings, draft a report and refer it to the assembly for a vote – a process that could take several months.

“Nobody can argue that the current incumbent is by any stretch of the imagination a suitable occupant,” said John Steenhuisen, the DA’s chief whip in parliament. “The DA does however believe that every report produced by the office of the Public Protector should still be judged on its own merits.”

Mkhwebane has warned parliament against her early removal and threatened to go to court to defend her position, the Johannesburg-based Sunday Times reported, citing a letter she wrote to Modise.