By Paul Hoffman
12 Sep 2022
Lawfare that uses a Stalingrad strategy and is publicly funded ought to be nipped in the bud. It is to be hoped that the Constitutional Court puts its best foot forward swiftly in the current lawfare that is a manifestation of factional ANC politics rather than a genuine legal dispute.
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Advocate Busisiwe Mkhwebane has been our Public Protector ever since the fixed-term appointment of her predecessor ended in October 2016. Mkhwebane’s non-renewable term ends, at the latest, exactly seven years later in October next year, unless she is removed from office earlier in accordance with convoluted procedures, currently under way, that are written into section 194 the Constitution to protect the independence of all who lead in our Chapter 9 institutions.
The Chapter 9 institutions exist in our constitutional order as “state institutions supporting constitutional democracy”, to quote the heading of the chapter. The founders of the new order in South Africa recognised that the population, long under the heel of an authoritarian regime and even longer subjected to the ravages of colonial exploitation and oppression, would need support – assistance in converting from passive subjects of finger-wagging authoritarians into active and participative citizens of the new democratic order envisaged by the National Accord which preceded and informs the new system.
Our supreme law envisages an open, accountable and responsive form of government that takes delivery of the rights guaranteed to all in the Bill of Rights (which is Chapter 2 of the Constitution) seriously. The Constitution itself is expressly regarded as our supreme law, a most welcome change from the much-abused parliamentary sovereignty of old.
The Public Protector has the power to investigate, report on and take appropriate remedial action in respect of any conduct of state affairs or in the public administration “that is alleged… to be improper, or to result in any impropriety or prejudice” [C 182]. She also polices the ethics of the executive branch of government.
The Public Protector must be accessible to all persons and communities, free of charge. The President and Parliament, like all other organs of state, must assist and protect the Public Protector to ensure her independence, impartiality, dignity and effectiveness. A Public Protector facing impeachment proceedings cannot be effective; hence the precautionary suspension of Mkhwebane and the appointment of her deputy as acting Public Protector.
The official opposition did not support the candidature of Mkhwebane. She was hand-picked by then president Jacob Zuma, who had been burnt by his previous choice seven years earlier, Thuli Madonsela, who held him to account magnificently. At her insistence, the appointment of the State Capture Commission led to his incarceration for contempt of court after he refused to comply with an order of the Constitutional Court compelling him to give evidence to that commission.
Read more in Daily Maverick: “The public protector is between a rock and a hard place”
The DA is also the complainant in the parliamentary proceedings into Mkhwebane’s fitness for office currently under way to test its allegations of incompetence and misconduct on the part of Mkhwebane. She has resisted being put on the carpet, using every legal stratagem available to her. The lawfare in which she is engaged is coming to a head as an appeal, applications and counterapplications fly back and forth. The latest developments and their political implications are brilliantly analysed by Marianne Thamm and need not be repeated here.
‘Catch me if you can’
The unwillingness of Mkhwebane to account for her conduct of the affairs of the Office of the Public Protector has a long history stretching back to January 2017, when she declined to answer some simple questions related to her apparent mendacity and obvious lack of competence that were posed to her by Accountability Now in the context of its CIEX complaint against the State Security Agency.
She eventually morphed that complaint into the opportunity to take Absa bank to task and, bizarrely, to order Parliament to change the mandate of the Reserve Bank. The latter is proof positive of her lack of competence. Neither of these two topics formed any part of the complaint. The questions are recorded in a still unanswered complaint laid with the oversight body of the Public Protector, the Justice Portfolio Committee in the National Assembly.
If Mkhwebane ever gives evidence to the parliamentary committee currently sitting, apparently endlessly, she can be asked those questions. Her tactics seem to be of the “catch me if you can” variety, which is often the refuge of those whose alleged misconduct is under scrutiny. This strategy does not behove one tasked with comporting herself openly, accountably and responsively.
It is to be hoped that the Constitutional Court puts its best foot forward swiftly in the current lawfare that, as Thamm suggests, is a manifestation of factional ANC politics rather than a genuine legal dispute. The law is plain: the President may suspend the Public Protector at any time after the start of the proceedings in the National Assembly. This duty requires him to avoid exposing himself “to any situation involving the risk of a conflict between his official responsibilities and private interests” [C 96]. The Constitution allows for the situation in which the President is unable to fulfil his duties [C 90]; it is constitutionally possible for the deputy president, a minister or even the Speaker to act in his place.
It will be appreciated that the test for a risk of conflict is more stringent than the common-law requirement that decision-makers should recuse themselves in a situation in which there is a reasonable apprehension of bias on their part. The high court has adopted a belt-and-braces approach by finding that the President, on the facts, is on the wrong side of the law both as regards a risk of a conflict of interests and as regards the reasonable apprehension of bias on his part.
The Constitutional Court will, when it adjudicates in the matter, make its own assessment of the facts and rule accordingly. In its Nkandla judgment it stressed that the mere risk of conflict of interest is all that is required, an actual conflict need not manifest itself.
Mkhwebane seems to think she can return to her post immediately. She is sorely mistaken. The deputy president can act in the place of the President to suspend her himself if the President is found to be legally incapable of doing so, whether at common law or under the constitutional powers conferred on him, or if he is unable to fulfil the duty of suspending a Public Protector.
The President may do well to ask the deputy president to apply his mind to the question of placing Mkhwebane on temporary suspension. The President has already intimated that he regards the guidance afforded by the Constitution as applicable. The sections of the Constitution referred to herein afford the necessary guidance.
Even more obviously, the order of the high court does not come into operation, it has no force, until it is confirmed by the Constitutional Court [C172] because it relates to the conduct of the President in suspending the Public Protector under his constitutionally conferred discretion to do so. The DA’s appeal against the high court decision has the effect of suspending its operation until the confirmation hearing in the Constitutional Court. The confirmation hearing should be accorded an accelerated date for hearing in the Constitutional Court.
Mkhwebane, predictably, is seeking to enforce the high court order despite the DA’s pending appeal.
The high court has the power to grant a temporary interdict or other temporary relief to the Public Protector, or it may adjourn its proceedings pending a decision in the Constitutional Court [C172(2)(b)]. As the suspension is of a precautionary nature, it will be difficult for Mkhwebane to demonstrate to any court that there is any urgency or any irreparable harm to her justifying the grant of temporary relief pending the appeal and the confirmatory hearing into the question of whether the conduct of the President in suspending her was constitutionally valid.
Such urgency as exists would appear to relate to the burning desire of Mkhwebane to get her hands onto the file relating to the Phala Phala burglary which has so embarrassed the President. That is not the type of urgency that the courts should countenance in making objective and impartial decisions in the dispute.
Mkhwebane currently has her hands full in the inquiry into her alleged misconduct and incompetence. That inquiry has already heard a great deal of worrisome evidence pointing towards a finding against her. The pace at which it is being conducted would suggest that, given threatened interlocutory litigation, it may not be over before the term of office of Mkhwebane expires in October next year.
Lawfare that is using a Stalingrad strategy and is publicly funded ought to be nipped in the bud. It is in the hands of the Chief Justice to issue directives that bring the matter to a head in the Constitutional Court without unnecessary delay. DM