Parly hack’s Constitutional 101 for Mkhwebane

Veteran parliamentary reporter, Marianne Merten, has become familiar with the rules and regulations governing politicians, whose lurid and fierce debates she covers daily. She also constantly reports on the interface between the legislature and the judiciary where the separation of powers is vital to democracy. Judges are reluctant to step into the political arena where draft laws are battled over before being voted on and accepted for signature by the President. It seems Merten’s knowledge is more intimate than Public Protector Busisiwe Mkhwebane, whose flouting of parliamentary protocols and regulations reveals a seriously inflated sense of her own legal importance. It’s not that Mkhwebane doesn’t have clout in holding politicians to account. It’s just that her reading of the Public Protector Act appears about as clear as mud. Merten takes us through some of the remedial actions Mkhwebane has ordered our public representatives to take. Actions which indicate a poor grasp of legal waters she should be navigating with consummate ease. It’s hard not to be seduced by conspiracy theorists who claim she has a Zuptoid political agenda that trumps all reason and, in many cases, pure logic. Story courtesy of the Daily Maverick. – Chris Bateman

A few constitutional (and other) lessons for the Public Protector

By Marianne Merten

What can the public protector do?

A lot, really. But all of it centres around action, or lack of action, in the public domain, or state affairs, involving public monies, public officials and public administration.

Or as Section 182(1) of the Constitution says: “The public protector has the power, as regulated by national legislation, to investigate any conduct in state affairs, or the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice…”

And that could be a pensioner, or group of pensioners, being denied a pension. Or grants being refused for spurious non-reasons by a power-hungry, bribe-grabbing public servant. Or the victimisation by civil servants of a colleague, who spoke out against wrongdoing in a government department or entity. Or the failure of local government to provide dignified ablution facilities, or access to decent health care. None of these examples are thumb sucks; all have been the subject of previous public protector investigations.

PREMIUM: Paul Hoffman: SA must throw overboard its PP, “loose cannon” Mkhwebane

Not covered by the constitutional public protector mandate are matters of private money and private money in politics such as private donations for internal political party contests like CR17.

Crucially, South African law regards political parties as voluntary associations, or entities, which have no public disclosure obligations. Hence the need for a law – the Party Political Funding Act, which, however, does not deal with the funding of internal party contests. There is nothing in law, the Constitution, codes of conduct or anywhere else that requires political parties to disclose how much money was generated from private donors in their own internal party contests.

What other instruments does the public protector have at hand?

The Protected Disclosures Act allows whistle-blowers to also approach the public protector, if they so wish. But the mainstay of the public protector lies in two statutes – the 1998 Executive Members’ Ethics Act and executive ethics code of conduct and the 1994 Public Protector Act that gives greater functional detail to the constitutional mandate.

The Executive Members’ Ethics Act in Section 4 stipulates the public protector must investigate breaches of the executive code of conduct by the president, Cabinet ministers and deputy ministers.

The Public Protector Act in Section 6(4) outlines in much greater detail what Section 182 of the Constitution had stipulated, including wide-ranging powers to investigate

  • “Maladministration in connection with the affairs of government at any level”;
  • “Abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function”; and
  • “Improper or unlawful enrichment” or promise of such an improper enrichment or advantage by someone in the public administration or performing a public function at any level of government.”

Section 6(4) of the Public Protector Act states the public protector may also investigate “improper or dishonest” acts, omissions or offences outlined in Chapter 2 of the Prevention and Combating of CorruptActivities Act “with respect to public money (own emphasis)”.

It was from that provision, Public Protector Busisiwe Mkhwebane as recently as 10 July told MPs, that she derived “a corruption mandate”. In a clear reference to the ethics breach probe against President Cyril Ramaphosa, although without naming names, she said: “Of late, there has been a debate on whether we have the power to investigate alleged money laundering in relation to one of the matters before us. Our view is, depending on the nature of the complaint we can invoke this law to deal with that kind of case.”

But money laundering – broadly defined as concealing or disguising proceeds of criminal activity – is dealt with in two other acts: the Prevention of Organised Crime Act (it doesn’t seem to mention the public protector) and the Financial Intelligence Centre Act, which binds the centre to co-operate with and make information it has collected available to the public protector.

Can the public protector tell others what to do?

Yes, but it’s not unfettered. As an institution supporting constitutional democracy established in Chapter 9 of the Constitution, the public protector is also bound by the Constitution, or South Africa’s supreme law.

The “appropriate remedial action” the Constitution allows the public protector in Section 182(1)(c) is there precisely to set right what had gone wrong in the interest of administrative justice.

Not in the range of appropriate remedial action is telling Parliament, well the justice committee chairperson, to bring about through a motion in the House a constitutional amendment to broaden the South African Reserve Bank mandate. That’s not how any of the 18 constitutional amendments have been done in democratic South Africa – all involved constitutional amendment bills subjected to public hearings.

Read also: Dusk draws in for Mkhwebane – Paul Hoffman

In the initial 2017 court action over the apartheid-era Absa Bankorp bailout report, Mkhwebane conceded the inappropriateness of telling Parliament what to do. National Assembly Speaker Baleka Mbete, in court papers, opposed the public protector telling Parliament even the wording of a constitutional amendment. “[The public protector] operates under the Constitution and not over it. She must accordingly exercise her powers within the parameters of the Constitution. She does not have the power to order or even propose an amendment of the Constitution…” said Mbete, adding later: “Only Parliament may decide what legislation to initiate, consider, pass, amend or reject. The public protector may not prescribe to Parliament how to exercise these discretionary powers.”

And on 15 August 2017, North Gauteng High Court Judge John Murphy slapped down the constitutional amendment remedial action, finding “… only Parliament has the power to amend the Constitution and she has no power to dictate to Parliament”. Mkhwebane’s “begrudging concession of unconstitutionality”, the judge ruled, was no defence to charges of illegality and irrationality.

The full review of the Absa Bankorp report – ultimately declared unlawful and invalid in early 2018 – was still underway when in October 2017 Mkhwebane told MPs she stood by her report, although she acknowledged a lesson learnt was not to be prescriptive to Parliament. The justice committee, in an official statement, accepted her explanation that “she had not meant to instruct Parliament to amend the Constitution, but merely recommending that [it] should be given the necessary attention. The committee is of the opinion that this flawed action should not overshadow attempts to investigate the role of the Reserve Bank in the reduction of poverty in South Africa”.

So the public protector can’t tell Parliament to amend the Constitution, but can she instruct Parliament on other stuff?

The public protector’s self-described “lessons learnt” of 2017 not to be prescriptive seem to have evaporated in her Bosasa report. Parliament is, again, told to do a few things – from considering improving parliamentary rules to hauling the president before the parliamentary ethics committee and into its disclosure regimen.

But President Cyril Ramaphosa is no longer an MP, and therefore not subject to the parliamentary code of conduct that requires disclosure, nor subject to Parliament’s joint ethics committee. In line with Section 87 of the Constitution, Ramaphosa resigned as a member of Parliament after being elected president in the National Assembly on 15 February 2018.

Politically, the DA and EFF and any other political party missed the boat in 2017 to complain about the failure of the then still deputy president and MP Ramaphosa to declare donations for his campaign as ANC party president. And no one complained to the joint ethics committee about Nkosazana Dlamini-Zuma, who was sworn in as MP in September 2017 and made a declaration in the 2017 Register of Members’ Interests. Or about then Cabinet ministers Lindiwe Sisulu and Zweli Mkhize, who both ran ANC presidency campaigns of varying duration.

DA leader Mmusi Maimane should have known better: in March 2016 he was found guilty by the joint ethics committee of having forgotten to declare the sponsorships he got in the 2015 race for DA leadership.

The 2017 Register of Members’ Interest was published in June 2018, after having been approved in committee in late March that year. Joint ethics committee co-chairpersons Amos Masondo and Omie Singh in a statement on 5 June 2018 said: “The committee is happy to announce that all Members who were legally obliged to disclose have done so. However, the committee is concerned by the growing number of late disclosures and has resolved to have these cases investigated.”

The maximum penalty the committee can impose based on the parliamentary code of conduct is a fine equivalent to a month’s salary, suspension of privileges like attending sittings and a reprimand in the House.

But what about those codes of conduct, and the responsibility to declare?

Financial interests from directorships, shares, pensions and sponsorships as well as trusts, travel, property and gifts over the value of R1,500 must be declared once a year in Parliament and at the Union Buildings.

Parliamentarians must declare to the national legislature. As ministers, their deputies and the deputy president are also MPs, they declare twice: once to Parliament, which is readily accessible on the parliamentary website, and then in the Union Buildings, where access to declarations is more tricky, requiring an appointment for a physical visit. The president declares once – at the Union Buildings.

The executive code of ethics defines sponsorship as “direct financial sponsorship or assistance from any source other than the member’s party, which benefits the member in his or her personal and private capacity”.

The parliamentary code of conduct in Section 9 similarly requires the declaration of “the source and description of direct financial sponsorship or assistance from non-party sources, and the value of the sponsorship or assistance”.

These declarations must be made within 60 days of becoming MP, a timeline that caught then-president Jacob Zuma off guard. In 2010 the then public protector, Thuli Madonsela, found Zuma in contravention of the ethics declarations, but amends were quickly made amid expressions of regret over the delay in filing the disclosures, according to the then report.

In the CR17 saga, the public protector found the private donations for Ramaphosa’s contest for the ANC presidency to be sponsorship.

“… (I)t can be safely concluded that the campaign pledges towards the CR17 campaign were some form of sponsorship… and were therefore benefits of a material nature to President Ramaphosa,” said Mkhwebane in her Bosasa report of 19 July 2019. “President Ramaphosa as a presidential candidate for the ANC political party received campaign contributions, which benefitted him in his personal capacity. He was therefore duty-bound to declare such financial benefit accruing to him from the campaign pledges.”

It can be argued whether donations to a party political leadership contest are directly personal, or rather organisational and part of the functioning of a party. And whether such private donations fall under the public protector’s statutory and constitutional remit of dealing with matters of “public affairs” and “public money”.

But that such private donations are not regulated is a potential loophole in the Political Party Funding Act even as the law is not yet operational because its related regulations must still be finalised.

Enter at this stage the political party concerned: as a voluntary association, the party has a say on how it runs its business, including how candidates for internal party office fund their campaigns. At the recent public hearings on the Political Party Funding Act regulations, the ANC told the Electoral Commission of South Africa (IEC), the governing party’s national general council pencilled in for mid-2020 would look at regulating money for internal elections.

But the public protector says she can tell others what to do…

Mkhwebane in her Bosasa report tells Modise to report back within 30 days on the implementation of just one of the remedial action for Parliament – getting Ramaphosa to declare the CR17 donations.

That remedial action is now suspended as Ramaphosa successfully applied for an interdict pending a court review of this report. And similar to how Parliament stepped into the Absa Bankorp saga, the national legislature may yet decide to enter the court review.

After all, not even judges in court cases directly dealing with parliamentary rules (or the lack of them), such as the rules on motions of no confidence or impeachment, have told Parliament what to do. It’s always been a case of: Here’s the flaw, this is why it’s a flaw, now please get your House in order. It’s about the separations of powers between the legislative and judicial spheres of state, as set out in the Constitution.

It’s not immediately clear whether the Speaker has already written to Mkhwebane about these prescriptive remedial actions that include a consideration by Modise to refer the rules to MPs for amendment. But Parliament has confirmed it is in the process of processing the Bosasa report.

But it’s confirmed Modise has responded to Mkhwebane’s tough letter that, according to City Press, criticised the Speaker for failing to “admonish” MPs for casting aspersions against her without the substantive motion required in Rule 88, and for allowing MPs of the justice committee to determine whether or not to hold an inquiry into her fitness for office.

Much of Mkhwebane’s letter hinges on Section 181(3) of the Constitution that says: “Other organs of state, through legislation and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions”. It’s a reference to all Chapter 9 institutions established to support constitutional democracy, including the IEC, auditor-general and South African Human Rights Commission.

But Parliament is the sphere of state not only with legislative powers, according to Section 55, but also of holding to account the executive while maintaining oversight over any organ of the state. To do so, Parliament determines its own processes, procedures and mechanisms, as Section 57 of the Constitution outlines.

Public Protector, Busisiwe Mkhwebane

Floored (Busisiwe Mkhwebane). More of Zapiro’s magic available at www.zapiro.com.

The clearest signal Modise isn’t kowtowing to Mkhwebane comes in the fact the justice committee has set 3 September as the date to start considering the public protector inquiry.

It doesn’t necessarily mean anything might happen any time soon: a previous DA request in the previous Parliament was kicked for touch for longer than 18 months before finally being ditched because of Mkhwebane’s outstanding Constitutional Court challenge to the personal cost order related to the Absa Bankorp matter. On 22 July a majority judgement ruled against her.

But the bottom line is that it will be Parliament that decides how to conduct its business.

And so it is with the National Prosecuting Authority (NPA), whose boss, advocate Shamila Batohi, wrote to Mkhwebane, very politely by all accounts, over the misunderstanding about the “independent mandates about our respective offices”. The prosecuting authority is also a constitutional entity established in Chapter 8 of the Constitution in Section 179.

Mkhwebane had referred her findings regarding the R500,000 Bosasa donation as money laundering to the NPA to “conduct further investigations into the prima facie evidence of money laundering as uncovered during my investigations, and deal with it accordingly”. And report back within 30 days on an implementation plan.

The Mail & Guardian has quoted from the public protector’s acting legal services manager, Muntu Sithole, who replied to Batohi’s letter, saying: “The case law is clear that the public protector can direct organs of state to take certain steps, and even direct how those steps should be taken. Although the public protector cannot dictate to the NDPP how the investigation must unfold, the NDPP must nevertheless submit an implementation plan as recorded in the report.”

The case law cited, again, is the March 2016 Constitutional Court Nkandla judgment Mkhwebane cites frequently and freely, including at the July briefing of MPs and as a preamble to her Bosasa report.

The Public Protector Act in Section 6(4)(c)(i) states the public protector may “bring the matter to the notice of the relevant authority charged with prosecuting”. And as constitutional expert Pierre de Vos has pointed out, instructing the NPA what to do may amount to influencing the prosecution service, which under the NPA Act Section 32(1) is an offence.

An aside on parliamentary rules and question time in the House.

The public protector’s commentary on question time in the House and rules can’t be ignored. It’s not the first time she has made them.

While Mkhwebane bases her Bosasa report remedial action for the Speaker to consider referring rules to MPs for amendment, given “the number of EMEA [Executive Members’ Ethics Act] investigations I have had to deal with since taking office”, there are just two such probes on the public protector website. A third probe in early 2018 doesn’t seem to be on the official website.

Ex-finance minister turned co-operative governance minister David van Rooyen, who claimed he never met the Guptas when he did, was found to have misled Parliament in February 2018.

At the time the public protector’s remedial action included: “The Speaker of the National Assembly should ensure the questions asked in Parliament are very clear before the Member is required to answer”.

Mkhwebane’s remedial action was that the president should take “appropriate action” against Van Rooyen. Ditto, then public enterprises minister Lynne Brown, who was found guilty of having “inadvertently” misled Parliament over contracts between Eskom and the Gupta-linked Trillian.

Both ministers were dropped from Cabinet by Ramaphosa in response to the public protector’s remedial action, according to presidential letters to Parliament in March 2018.

Read also: HSF calls for Parliament to expedite vote to remove Public Protector

In late 2017, then state security minister David Mahlobo escaped a finding of having lied to Parliament over whether he had #FeesMustFall leader Mcebo Dlamini at his house. At a public panel discussion in November 2016 he said Dlamini had been at his house several times, but in response to a question in the House from DA MP Belinda Bozzoli, he said not.

It was all about “context and gist”, according to the public protector, as Bozzoli’s question seemed to suggest Mahlobo and Dlamini met to discuss the student protests. “There is no indication in the recording of the minister’s response that he denied knowing Mr Dlamini or that the latter ever visited his residence. Under the circumstances it can not be found the minister wilfully misled Parliament,” the public protector found.

The whole point about question time is for MPs to actively hold ministers, deputy ministers and the president and his deputy to account. Yes, in a political institution like Parliament it can be tricky for the member of the executive, who must think on their feet. Only the original question can be prepared for, not the four follow-ups that can test the political and subject mettle of a minister or president. But that is part of the robust character of oversight, Parliament’s constitutional responsibility, and the character of democratic parliaments the world over.

What next?

The court review of the Bosasa report, and others. Thirty of them, according to Mkhwebane’s July briefing to MPs.

On Monday 13 August, the Right2Know Campaign (R2K), which with others like MyVoteCounts has worked for years towards party political funding transparency, cautioned everyone “not to fall foul of the internal competition and factional battles” of any political party.

“We should be privy to all of the information – not just the information on one candidate. Only where that is available will we be able to make up our own mind about how compromised any politician – or any party – is.” DM