Constitutional Hill

corruption

The President’s reply to the Public Protector: why it won’t hold water

In response to a letter written to him by Public Protector Thuli Madonsela about his failure to respond appropriately to her findings regarding the renovations at state expense of his private home at Nkandla, President Jacob Zuma questioned the Public Protector’s interpretation of the scope of her powers. Although no South African court has given a definitive answer to the exact scope of the powers of the Public Protector, some of the President’s claims are at best debatable. Here is why.

President Jacob Zuma says he disagrees with the Public Protector that findings of her office are by law not subject to any review or second-guessing by a Minister and/or Cabinet. He also challenges the view that only a court of law can review and set aside findings made and remedial actions taken by the Public Protector.

He states that the Public Protector’s role “is akin to that of an Ombud and quite distinct from that of a judge”. Her findings, argues the president, are useful tools to assist the government but they have no binding effect on the president. Because her findings do not emanate from an adversarial process, they cannot be binding. The president claims that he would be acting irrationally if he only considered responding to her findings in two ways: either to review her findings or to rubber-stamp them.

The Public Protector is a constitutional body exercising public power in terms of the Constitution and the Public Protector Act. She is empowered by section 182(1) to investigate alleged improper conduct in state affairs or the public administration and to make appropriate findings about the alleged improper conduct.

As the Supreme Court of Appeal (SCA) pointed out in 2011 in its judgment of The Public Protector v Mail & Guardian the Public Protector is not a mere Ombud, as the president alleged in his letter to her. This is because the Public Protector Act:

makes it clear that while the functions of the Public Protector include those that are ordinarily associated with an ombudsman they also go much beyond that. The Public Protector is not a passive adjudicator between citizens and the state, relying upon evidence that is placed before him or her before acting. His or her mandate is an investigatory one, requiring pro-action in appropriate circumstances.

The powers of the Public Protector are indeed wide-ranging; far exceeding those normally associated with an Ombud. As the SCA further pointed out, the Act confers “sweeping powers” on the Public Protector’s office to enable her to conduct her investigations. The Act empowers the Public Protector to:

call for explanations, on oath or otherwise, from any person, he or she may require any person to appear for examination, he or she may call for the production of documents by any person, and premises may be searched and material seized upon a warrant issued by a judicial officer… He or she is expected not to sit back and wait for proof where there are allegations of malfeasance but is enjoined to actively discover the truth.

Because the findings and remedial action taken by the Public Protector are made in terms of the Constitution and the relevant legislation, it cannot be correct to argue – as the president does – that the president, a Minister or the Cabinet can review or set aside her findings.

Just as the president or the Cabinet cannot set aside a decision of the CCMA, the Electoral Commission or the Pension Fund Adjudicator (or any other body authorised by law to investigate and make findings on matters in an independent and impartial manner) it cannot do so with findings of the Public Protector.

To hold otherwise would be completely to negate the independence of the Public Protector, which section 181(2) states is “subject only to the Constitution and the law”. It would also be in conflict with the duty imposed by section 181(3) of the Constitution on organs of state to “assist and protect” the Public Protector and to ensure its “independence, impartiality, dignity and effectiveness”.

Surely, were the very politicians implicated in wrongdoing by the Public Protector empowered to review and set aside her findings and remedial action, it would strike a fatal blow against the “effectiveness” of the institution of the Public Protector. To understand why this is so, consider an extreme example: imagine it was legally possible for a convicted murderer to review and set aside his or her conviction or the sentence imposed. That court of law’s effectiveness would be fatally undermined if this were to be allowed.

If the president or the Cabinet could review and set aside the decisions of the Public Protector, the legal powers bestowed on her office would thus become illusory.

The principle of nemo iudex in sua causa (no one may be a judge in his or her own cause) must surely also apply here. If the independence and impartiality of the Public Protector means anything, it must mean that her findings should not and may not be extinguished by the say-so of those against whom she has made findings of maladministration or misconduct.

I am therefore pretty sure only a court of law can review and set aside her findings and then only on the basis that she overstepped her powers, misconstrued the law or otherwise acted irrationally.

But if this is correct, does this mean that the president and his cabinet is bound by her decisions and that they are legally obliged to comply with the remedial action imposed by her office?

Our courts have not finally answered this question, but the wording of the relevant sections of the Constitution and the Public Protector Act suggest that her findings and remedial action may be binding. If this is correct, the Public Protector’s position would differ markedly from the position of most Ombudsman in other democracies – something the SCA has already confirmed.

The president is correct that the Public Protector is not a court of law. The argument could therefore be made that holding that the findings and remedial actions of the Public Protector are binding would be troubling as it would create confusion about the separation of powers between the judiciary and other constitutional bodies.

However, the Constitutional Court has said that South Africa has a unique system of separation of powers and that our understanding of it will develop over time. The starting point to understand our system will always remain the text of the Constitution. In this regard it may be significant that section 182(1)(c) of the Constitution states that the Public Protector has the power “to take remedial action” as regulated by national legislation.

This phrase suggests that the Public Protector does have the power to take binding steps to rectify wrongs committed by those in power, but that the power must be further elaborated upon in the Public Protector Act.

This seems to have been done in section 6(4)(b) of the Public Protector Act. This section provides some textual support for the argument that her findings and remedial action are indeed binding on the executive and on those directed to correct mistakes.

First, the heading of section 6 of the Act states that section 6 deals with the “additional powers of the Public Protector” and thus clearly deals with granting of powers to her as envisaged by the Constitution. Second, section 6(4) states that the Public Protector shall be competent:

to endeavour, in his or her sole discretion, to resolve any dispute or rectify any act or omission by (i) mediation, conciliation or negotiation; [...] (iii) any other means that may be expedient in the circumstances.

This section is quite extraordinary in its scope. It empowers the Public Protector to take any steps she believes to be expedient in the circumstances to rectify the wrongdoing. “Any steps” must surely include ordering remedial steps. If the Public Protector is empowered to take any steps to rectify wrongdoing it must therefore include, say, ordering the president to repay a reasonable amount of the money with which he and his family were enriched by the renovations at Nkandla.

However, section 8 of the Act troubles the waters slightly as it states that the Public Protector may “in the manner he or she deems fit, make known to any person any finding, point of view or recommendation in respect of a matter investigated by him or her”.

Does this mean her factual findings are binding but that when she directs that remedial action be taken these are only recommendations?

A court of law will have to decide on this, but I suggest that there are two ways of reading the provisions of the Act.

First, it could be read as saying that the Public Protector’s findings and remedial action are that of an independent constitutional body that is subject only to review by the judiciary and is binding on the executive.

However, as the Public Protector is not a court of law, whenever a person directed by the Public Protector to take remedial action fails to do so, it would be necessary to approach a court of law for an order finding that the Public Protector’s directions were not complied with and asking the court to direct the president or other responsible person or body to implement the findings and remedial action imposed by the Public Protector.

Alternatively, the Constitution and the Act could be read as saying that while the Public Protector’s findings and remedial action are that of an independent constitutional body that is subject only to review by the judiciary, these findings and remedial action are not strictly binding (in the same way a court order is binding) on the president or other responsible persons or bodies who have been required to implement the findings and remedial action.

According to this second view, what would be required would be for the president or other responsible person to respond in a rational manner to the findings and remedial action imposed by the Public Protector in a manner that would assist and protect the Public Protector to ensure the independence, impartiality, dignity and effectiveness of her office as required by the Constitution.

Whether it could ever be rational to ignore the remedial action imposed by the Public Protector (given that such a move would almost certainly undermine the independence and effectiveness of the Public Protector) is a good question to ask.

What would certainly be true is that ignoring the remedial action required by the Public Protector or failing to consider all the relevant findings when formulating a response to a report of the Public Protector would not be rational.

If I am correct, no matter whether a court ultimately prefers the first or second view set out above, the president runs the risk of being told by a court of law that he has acted irrationally in responding to the Public Protector’s report and that his response was therefore unlawful and invalid.

Nkandla: Zuma’s convoluted series of Houdini moves

Over the past week the governing party released a veritable sea of red herrings into the political pond (more like a cesspit) in an attempt to avoid confronting the embarrassing but incontrovertible fact that President Jacob Zuma violated the Executive Ethics Code and improperly benefited when taxpayers funded the building of a swimming pool, a visitors’ centre, an amphitheatre, a cattle kraal, a chicken run and other non-security related renovations at his private Nkandla palace. It’s time to cut through the verbiage and explain what must happen next.

The Public Protector is the only independent constitutional institution that has conducted a comprehensive and impartial investigation into the Nkandla scandal. That institution produced a 447-page report clearly indicating what went wrong with the Nkandla palace upgrade and clearly setting out the remedial steps that must be taken to correct the wrongdoing.

The findings and remedial action imposed by the Public Protector are not popular in some quarters, but like all factual findings made by an independent constitutional institution they are not subject to changes made by the majority of MP’s in Parliament. If that were so, then the Public Protector would be irrelevant – just as the courts would be irrelevant if their decisions could be amended by Parliament.

What must happen next – in accordance with the Constitution – is that these remedial steps must be implemented forthwith (“speedily and without delay”, as the Constitution would have it). The rest is irrelevant political noise.

The Ministerial Task Team who first “investigated” the Nkandla scandal was not an independent body and did not conduct an impartial investigation. It was a body of people tasked with investigating their own bosses.

If Oscar Pistorius’ uncle Arnold Pistorius had been asked to rule on whether Oscar was guilty of murder, uncle Arnold’s “ruling” would probably have been more credible than the report produced by the Ministerial Task Team.

Such a “ruling” by uncle Arnold would also have had the same legal status as the Ministerial Task Team investigation and report. The investigation of the Ministerial Task Team was an informal one, not explicitly authorised by any law or any constitutional provision. It therefore has no legal standing. As a public relations exercise it might have had some value, but in law it is irrelevant.

The Special Investigative Unit (SIU) is also not an independent and impartial constitutional body. Because it is not independent and because its functions stray too far from that associated with that usually performed by a judge (who does have to be impartial) the Constitutional Court ruled that a judge couldn’t head the SIU.

In terms of the SIU Act its head is appointed by the president and can at any time be removed by the president. The SIU head thus serves at the pleasure of the president and he would therefore be foolish in the extreme to make any finding against President Zuma if he wanted to remain in office.

In any case, the SIU can only investigate matters when he or she is authorised to do so by the president. When the president authorised the SIU to investigate the renovations at Nkandla he (unsurprisingly) did not authorise the SIU to investigate whether President Zuma had breached the Ethics Code or had improperly benefited from the renovations when taxpayers funded the building of a swimming pool, a visitors’ centre, an amphitheatre, a cattle kraal, a chicken run and other non-security related renovations.

The SIU can institute civil proceedings against those it has investigated to recover damages or losses incurred by the state. It can therefore go after the architect and others who allegedly unduly benefited from the Nkandla renovations. The SIU should do so forthwith. However, even if it had wanted to (which would have been career suicide for its head) the SIU cannot hold the president to account for breaches of the Ethics Act or for improperly benefiting from the Nkandla palace renovations because President Zuma ensured that it could not investigate him.

The ad hoc committee of Parliament also has a role to play in holding the president and others accountable. In this it is to be assisted by the Public Protector, the president and other Ministers and functionaries found to have acted in breach of their legal and constitutional duties. Its role is to ensure that the president, the various ministers and the functionaries comply with the remedial action provided for by the Public Protector.

The ad hoc committee must therefore study the remedial action imposed by the Public Protector with a view to hold the executive accountable for complying with the remedial action. To this end it is empowered by section 56 of the Constitution to summon the president or any minister to appear before it to give evidence on oath or affirmation, or to produce documents (including the documents the president unlawfully refused to provide to the Public Protector). It can also require the president or any minister to report to it on any aspect of the scandal.

This it can do to ensure that the president, the relevant ministers and other functionaries comply with the remedial action imposed by the Public Protector’s report.

What the ad hoc committee cannot do is to either purport to review and reject the findings and remedial actions of the Public Protector. Chapter 9 institutions are independent and as Parliament itself found in an ad hoc Report on Chapter 9 bodies, neither the legislature nor the executive may interfere with the core business of a Chapter 9 institution.

The core business of the Public Protector is to investigate maladministration and breaches of the Ethics Code and to direct that remedial action be taken.

This means that the ad hoc committee has no authority to either review or ignore the findings and remedial action of the Public Protector. If it purports to review its findings and to replace the findings with different ones, it would be acting ultra vires and hence illegally. If it ignored the findings that are relevant for its oversight and accountability functions it would act irrationally and hence unlawfully.

This is made obvious with reference to an example from another Chapter 9 institution, the Electoral Commission. If the Electoral Commission declares candidate A from an opposition party to be the winner in a constituency in a local government by-election, a committee of Parliament cannot review that decision and decide that candidate B of the governing party should be elected instead. If it purported to do this it would represent a fundamental attack on democracy and would represent a flagrant unconstitutional power grab on behalf of the majority party in Parliament.

Similarly, if the ad hoc committee purports to review and set aside the findings of the Public Protector because the findings are unpopular with President Zuma, then the ad hoc committee would be launching a full frontal unconstitutional attack against the Constitution. In order to protect our democracy a court would have no problem in declaring such action by the ad hoc committee unconstitutional.

The various persons and bodies will probably not comply with the steps as set out above. In order to shield the president from the consequences of his own actions and to endorse the unlawful self-enrichment of the president and his family at taxpayers’ expense, the law and the Constitution (as well as Parliament) will probably be undermined and degraded. All because the president refuses to pay back the money that he owes to South African citizens.

Public Protector tries to assist President to act lawfully – to no avail.

Politicians often behave like alcoholics who refuse to acknowledge that they have a drinking problem. Instead of accepting the help they so desperately need to recover from the devastating illness, they attack those who try and assist them and vilify those who have their best interest at heart for “interfering in their lives”. The response of President Jacob Zuma (and, recently, that of the ANC) to the many attempts by Public Protector Thuli Madonsela to assist the President to deal properly and in a constitutionally and legally valid manner with the Nkandla scandal is a case in point.

In her most recent letter addressed to President Jacob Zuma about his response (or substantial lack thereof) to her report on the Nkandla scandal, Public Protector Thuli Madonsela points out that she is “currently preparing a special report to the National Assembly regarding progress achieved by organs of state with the implementation of remedial action”.

In order to protect the President and the government he leads she wishes to avoid a situation in which she has to advise the complainants and the National Assembly that the President has failed to engage with the substance of the report or implementation of the remedial action proposed in it.

Having to provide such advice would obviously cause further embarrassment to the Presidency and would also further expose the Presidency to legal action on the basis that his response to the report and his failure to implement the recommendations of the Public Protector are irrational and hence unlawful.

In terms of section 182(1)(c) of the Constitution the Public Protector has the power “to take appropriate remedial action” whenever that office finds that there was a breach of any law or whenever it was found that an organ of state acted unethically or in breach of its legal duties or is guilty of maladministration.

Section 181(3) of the Constitution further places a legal duty on all organs of state (including the President) to “assist and protect” the institutions of the Public Protector to ensure its “independence, impartiality, dignity and effectiveness”.

Relying on this power bestowed on her by the Constitution the Public Protector required the President to “take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures” implemented at his private residence “that do not relate to security, and which include Visitors’ Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool”.

It further required the President to “pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document” and to “reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused”.

Lastly, in accordance with section 3(5) of the Executive Members Ethics Act the President was required (over and above the requirements set out above), to “report to the National Assembly on his comments and actions on this report within 14 days”.

It would not be appropriate for the Public Protector to be seen to interfere with the process according to which the National Treasury determines what portion of the money President Zuma should pay back.

But it is appropriate for the Public Protector to try and assist the President in order to prevent him from acting unlawfully by purporting to usurp the power of the courts and thus by infringing on the separation of powers doctrine.

As the letter by the Public Protector makes clear, neither the President, nor the Minister of Police is legally authorised to reconsider the findings and remedial action contained in the Public Protector report. Only a court of law can review and set aside the findings and remedial action instituted by the Public Protector.

The decision by the President to task the Minister of Police “to report to Cabinet on a determination to whether the
President is liable for any contribution in respect of the security upgrades having regard to the legislation, past practices, culture and findings contained in the respective reports” is therefore not authorised in law.

If challenged a court would almost certainly set aside this decision of the President on the basis that it is irrational and hence unlawful.

It is also clearly in breach of the separation of powers doctrine as the President is purporting to bestow a judicial power on the Minister of Police. As the President and other members of the executive have often in the past emphasised how important they regard the separation of powers doctrine, this purported action by the President is surprising indeed.

As the Constitutional Court found in Democratic Alliance v President of South Africa and Others when exercising his powers or fulfilling legal or other constitutional duties the President cannot ignore factors relevant to the decision (legal obligations and factual findings about wrongdoing being such relevant factors):

There is therefore a three stage enquiry to be made when a court is faced with an executive decision where certain factors were ignored. The first is whether the factors ignored are relevant; the second requires us to consider whether the failure to consider the material concerned (the means) is rationally related to the purpose for which the power was conferred; and the third, which arises only if the answer to the second stage of the enquiry is negative, is whether ignoring relevant facts is of a kind that colours the entire process with irrationality and thus renders the final decision irrational.

Where the President ignores the fact that his Minister of Police does not have the legal authority to review and set aside the decision by the Public Protector to require the President to pay back a reasonable amount of the money spent on non-security related upgrades, he is ignoring factors relevant to the exercise of his powers and acts irrationally.

By ignoring the fact that neither himself nor the Minister of Police (or the National Assembly for that matter) can review and set aside the findings or the remedial actions imposed by the Public Protector, the President is therefore proposing to act in an irrational and hence unlawful manner.

The letter of the Public Protector alerts the President to this fact, presumably with the hope that the irrational and unlawful action will be rectified before it becomes necessary to approach a court of law to set aside the President’s decision. It is a pity that the Public Protector is now being criticised for trying to assist the President to act lawfully.

Some confusion has been created about the role of the National Assembly in this matter.

In terms of section 3(5) of the Executive Members Ethics Act the President has a further duty (over and above his duty to implement the remedial actions of the Public Protector in a rational manner) to submit a copy of the report of the Public Protector on breaches of the Ethics Code and any comments thereon, together with a report on any action taken in this regard to the National Assembly.

This became necessary because the Public Protector found that the failure of the President “to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution”.

(The President’s response that the Public Protector found that: “President Zuma did not mislead Parliament or violate the Executive Ethics Code when he addressed Parliament regarding the security upgrades” could therefore be misleading.)

This provision of the Executive Members Ethics Act recognises the role of the National Assembly in holding the executive to account. It allows the National Assembly to play its appropriate role in ensuring that the findings and remedial actions of the Public Protector are properly implemented. But the National Assembly cannot usurp the powers of a court or of the Public Protector. Its role is circumscribed.

Two important conclusions flow from this.

First, the National Assembly is not authorised to review and set aside the findings and remedial actions of the Public Protector. If the National Assembly purports to do so, it would act in breach of the separation of powers doctrine. Its task is limited to holding the executive accountable by checking whether the executive has implemented the recommendations and remedial actions set out by the Public Protector.

Second, it would be improper for the National Assembly to engage with an irrational and hence unlawful response by the President.

Recall that where the President acts irrationally by unlawfully authorising the Minister of Police to review the findings and remedial actions of the Public Protector, it taints the whole process and renders it irrational and unlawful. It is akin to a soccer game in which a player is ruled offside: everything that follows from the offside is null and void. Any goal scored after the offside ruling was made will not count.

It is therefore of no use for the National Assembly to engage with the irrational and unlawful recommendations of the President. The National Assembly is not a court of law and cannot render the actions of the President lawful by a say-so. If the National Assembly now engages with the irrational and unlawful recommendation of the President it would, at best, be wasting its time. At worst, it may endorse illegality.

It is for this reason that it was entirely appropriate for the Public Protector to write to the President in an attempt to protect the Presidency, the Ministry of Police and National Assembly and to ensure that these institutions refrain from acting unlawfully or from endorsing illegality.

It is rather unhelpful to shoot the messenger because the message she brings – no matter how true and timely – is unpleasant or embarrassing.

Just like it is unhelpful for the alcoholic to attack his or her friends and family members for pointing out that he or she needs help to deal with the illness at hand, so it is unhelpful for the President and the ruling party to attack the Public Protector for trying to assist the President (and the National Assembly) to deal lawfully and appropriately with the Nkandla scandal.

Hlaudi weather: The fog is even thicker than it looks

The appointment of Hlaudi Motsoeneng as the SABC’s Chief Operating Officer (COO) despite his dishonest and prima facie criminal behaviour raises serious questions about the willingness of public institutions and our government to respect constitutional institutions and to obey the law. It suggests that instead of viewing the public protector as an ally who can assist in rooting out dishonesty, maladministration, corruption and criminal behaviour, some public institutions and government ministers view the public protector as an irritating impediment to impunity.

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Some days I yearn for the time before the National Assembly selected Thuli Madonsela as public protector. In those more innocent and altogether more soothing times, I could read a report of the public protector without having my remaining trust in the basic decency and honesty of most human beings shaken to the core.

Now, because South African journalists who are not employed by the SABC often hunt in packs (journalists from the SABC seldom hunt at all) they often manage to create a negative image of an individual that accords with their own agendas, anxieties and prejudices.

Once the pack identifies a public persona as worthy of scorn, the good publicity ends and the relentless, predictable vilification continues apace. Nuance, even-handedness, and any consideration of the other side of the story seldom come in to the equation. I therefore try to be circumspect and not to assume the worst of a public official or politician in the absence of clear evidence that he or she is a scoundrel.

Over the past week, as the hysteria around the appointment of Hlaudi Motsoeneng reached a crescendo, I wondered whether Mr Motsoeneng may not have been unfairly targeted in this way because of his (authoritarian-sounding) support for the licencing of all journalists. Maybe it is not such a big deal that Mr Motsoeneng does not have formal qualifications – as long as he does his job diligently and with the necessary integrity?

I therefore went back to the report published by the public protector earlier this year on the shenanigans at the SABC to determine whether Mr Motsoeneng was not being unfairly painted as a dishonest, bumbling, scoundrel. Sadly, in this instance, the report of the public protector suggests, if anything, that journalists have been too kind to Mr Motsoeneng.

The public protector found that when Mr Motsoeneng first applied for a job at the SABC he completed an application form in which he indicated that he had passed Standard 10 (“matric”) in 1991 at the age of 23. However, he only provided symbols for 5 subjects (in which he indicated he had attained 4 E and one F symbols).

During an interview with the public protector, Mr Motsoeneng admitted falsifying his matric qualification and blamed others, whom he said told him to make up his matric symbols from the top of his head, which he did. With regard to the matric certificate, the form says “outstanding”, giving the impression that the certificate exists and would be submitted in due cause.

The report quotes Mr Motsoeneng as telling the public protector:

From me … for now because I do understand all the issues, I was not supposed, to be honest. If I was … now I was clear in my mind, like now I know what is wrong, what is right, I was not supposed to even to put it, but there they said, “No, put it”, but what is important for me Public Protector, is everybody knew and even when I put there I said to the lady, “I’m not sure about my symbols” and why I was not sure Public Protector, is because I go, a sub, you know I remember okay in English I think it was “E”, because it was you know after … it was 1995.

The report quotes from several letters sent by the SABC HR Department in which Mr Motsoeneng is requested to provide a copy of his outstanding matric certificate. It also quotes an undated response from Mr Motsoeneng, in which he indicates that he was still not in possession of the said certificate. He undertook to provide it as soon as he received it.

Now, in law, you commit fraud – a criminal offence – when you unlawfully make a misrepresentation with the intention to defraud which causes actual prejudice or which is potentially prejudicial to another.

It would not be a defence to claim that another person had told you to commit fraud, just as it would not be a defence to murder to claim somebody else told you to kill a person. Neither is it a defence to fraud to say that your fraudulent representation was known to be fraudulent by many people.

Where you persist in your misrepresentation (as Mr Motsoeneng did when he promised to provide the “outstanding” matric certificate) it will be easier for the state to prove that you had the intention to defraud.

In law, the actual or potential prejudice need not be financial but can also be to reputation or dignity. More importantly it exists where some aspect of public administration is materially inconvenienced.

The fraudulent nature of the misrepresentation was confirmed by a 2003 SABC Group Internal Audit, which confirmed that Mr Motsoeneng had misrepresented himself by stating that he passed matric in 1991. The Group Internal Audit also established that when Mr Motsoeneng applied for an Executive Producer’s post at Lesedi FM in 2003, the requirements for the post was a Degree or Diploma in Journalism with eight years’ experience in the production of Radio Current affairs programme.

Given this overwhelming evidence and given the admission of wrongdoing by Mr Motsoeneng himself the public protector concluded:

The allegation that Mr Motsoeneng committed fraud by stating in his application form that he had completed matric from Metsimantsho High School is substantiated. By his own admission during his interview, Mr Motsoeneng stated in his application form that he had passed standard 10 (matric), filled in made-up symbols in the same application form and promised to supply a matric certificate to confirm his qualifications. He did so knowing that he had not completed matric and did not have the promised certificate. His blame of Mrs Swanepoel and the SABC management that stating that they knew he had not passed matric, is disconcerting. If anything, this defence exacerbates his situation as it shows lack of remorse and ethical conduct.

What seem particularly disconcerting is that Mr Motsoeneng persisted in his dishonest behaviour, first lying to the public protector by denying he misrepresented his matric results but then, after being confronted with the employment application, admitting to the fraudulent misrepresentation.

Three perplexing questions arise form this sorry saga.

The first is why Mr Motsoeneng had not been prosecuted for fraud. Why had the relevant authorities at the SABC not requested the police to investigate the alleged fraud perpetrated against the SABC by Mr Motsoeneng?

The second question that arises is why so many people – including the previous and current chair of the SABC Board – have been eager to support the employment of a confidence trickster like Mr Motsoeneng in one of the most important positions at the corporation?

The previous Chair told the public protector in writing that “the SABC perused Mr Motsoeneng’s file and could find no evidence that he misrepresented his qualifications.”. This could not have been true as Mr Motsoeneng left the SABC under a cloud in 2003 after its own Group Internal Audit investigation found that he had misrepresented his qualifications.

Now, as Prof Burchell states in his textbook on Criminal Law: “Fraud is the crime of the liar, the cheat, the confidence trickster”. Why have so many people – some of them of high standing – been prepared to support and protect a “liar”, a “cheat”, a “confidence trickster”? Was there political pressure on them to do so, or did they do so because of their own lack of a moral compass?

The third question that arises is why the newly appointed Minister for Propaganda, Faith Muthambi, would ignore the recommendations by the public protector that the SABC should take disciplinary steps against Mr Motsoeneng for his dishonesty, abuse of power and improper conduct. This failure is almost certainly irrational and I would be extremely surprised if a court does not set aside the decision to confirm Mr Motsoeneng’s appointment.

The failure is also in conflict with the stated policies of the governing party to be serious about rooting out maladministration and corruption. The office of the public protector was created to assist public officials – including ministers – to adhere to the law and to act in a manner that would enhance trust in public bodies like the SABC. Yet, in the case of Mr Motsoeneng the Minister ignored the findings of the public protector and acted in a way that further eroded public trust in the SABC. It cannot be in the interest of the governing party to destroy the credibility of the SABC as it would then be far less likely to be believed by ordinary voters.

The Presidency issued a carefully worded statement claiming that President Jacob Zuma “has no role to play in the appointment of SABC management or staff and did not play any role in the said appointment”. This non-denial denial did not state that the President had not communicated his wishes about the desired appointment to Minister Muthambi or had not “requested” her to ensure the appointment of Mr. Motsoeneng as COO.

Whether the appointment was done to comply with the wishes of President Zuma is not clear. In any event, the statement by the Presidency does not deny it.

What is very clear is that the bizarre statement by Minister Muthambi that an independent law firm’s legal opinion to the board “cleared Mr. Motsoeneng of wrongdoing” and thus renders the appointment rational is a legal nonsense.

In fact, the claim by the Minister that the opinion of a private lawyer can trump the official findings of a constitutional body like the public protector may arguably open the Minister to criminal prosecution for contempt of the public protector in contravention of section 9 of the Public Protector Act.

Why would a new Minister risk her career to endorse a clearly illegal decision that opens her up to criminal prosecution? Could it be that she was merely complying with the request/instructions of the person who appointed her as Minister? Only the minister and the president would be able to enlighten us.

Attacks on Madonsela: blaming the messenger

The public protector is increasingly coming under attack from governing party politicians who fear that maladministration, misspending of public funds, disrespect to voters and outright corruption will be investigated and exposed. This is to be expected. No one wishes to be called to account for “eating” public funds or for acting in ways that completely disrespect the dignity of voters.

Last week an ANC MP, Bongani Bonga, complained before a justice portfolio committee meeting in the National Assembly (NA) that public protector Thuli Madonsela should desist from voicing views “that are political in nature”.

The Chair of the justice portfolio committee Mathole Motshekga supported his colleague and suggested that Chapter Nine institutions were duplicating each others’ work, and that this was adding to the public protector’s excessive caseload. Addressing Madonsela, he said: “I think the powers of these institutions, including yours, should be reviewed to avoid this costly duplication.”

While these attacks are not surprising or novel (after all, politicians all over the world will always try to protect themselves and the leaders of the party they belong to), they are not particularly well informed.

In terms of section 182 of the Constitution the public protector has the power to investigate “any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice, to report on that conduct and to take appropriate remedial action”.

Section 6(4) of the Public Protector Act further states that the office of the public protector may investigate a wide range of acts and omissions – either on his or her own initiative or on receipt of a complaint.

These include any alleged maladministration in connection with the affairs of government at any level; abuse of power or unfair, capricious, discourteous or other improper conduct by a public official; corruption with respect to public money; and improper or unlawful enrichment by a person as a result of the actions in the public administration at any level of government. However, for obvious reasons (relating to the independence of the judiciary) the public protector may not investigate court decisions.

The Nkandla investigation by the office of the public protector thus fell squarely within her mandate as set out above, relating as it did to maladministration, possible corruption as well as the improper and unlawful enrichment of President Jacob Zuma.

The only possible overlap in jurisdiction between the public protector and other Chapter Nine institutions relates to investigations of unfair or discourteous conduct by state officials. When the unfair or discourteous treatment may constitute unfair discrimination based on race, sex, gender, sexual orientation or some other relevant ground this may also be investigated by the Human Rights Commission or the Commission for Gender Equality. The Equality Courts can also deal with the same matters.

If the honourable Motshekga believes that discrimination based on race, gender or sexual orientation is not a particularly important matter and that citizens should rather not have the option of approaching different bodies to have this investigated, the Constitution or the relevant legislation can therefore be amended to make it more difficult for citizens to challenge racism, sexism and homophobia. But I suspect that is not official ANC policy.

No other Chapter Nine body may investigate maladministration, corruption, self-enrichment or discourteous and tardy service not related to the abuse of human rights. It is therefore unclear what Mathole Motshekga was referring to when he stated that the public protector and other Chapter Nine bodies were duplicating each others work.

It is important to recall that the independence and impartiality of the public protector is constitutionally protected. Another body – such as Parliament or the Presidency – cannot amend the findings of the public protector because such a body disagrees with these findings. This is so because it is a criminal offense to do anything in connection with an investigation of the public protector that would have constituted contempt of court if it had been done or said about court proceedings.

Just as it would constitute contempt of court for any individual to try and amend the findings of a court of law, so it would constitute a criminal offense to do so regarding an investigation of the public protector. It is also a criminal offense to insult the public protector or deputy public protector. You are liable for imprisonment for a period not exceeding 12 months if you commit such an offence.

Of course this does not mean that anyone – including Members of Parliament – cannot discuss the findings of the public protector and cannot criticize the findings on substantial grounds. However, imputing bad faith on the part of the public protector – as some politicians have been doing – does not constitute criticism of the findings of the public protector and would therefore constitute a criminal offence.

The public protector is in a difficult position. Her office does not have the same powers as a court of law and her findings cannot be enforced in the same manner as the orders of a court.

Nevertheless section 182 requires the public protector to “take appropriate remedial action” when necessary. This means that after concluding an investigation the public protector must make findings and must recommend the appropriate remedial action to be taken by the relevant authority.

Because the findings of the public protector do not have the same force of law as a court judgment, often the only way to ensure that the “appropriate remedial action” is taken is through publicity of the findings. That is why section 8 of the Public Protector Act provides for the publication of the public protector’s reports. Often the public protector will have to ensure the wide dissemination of her findings and recommendations to try and shame the relevant public officials or the politicians into taking the required remedial action.

I suspect it is this aspect of the public protector’s mandate that has upset the honourable Bonga. I assume the honourable Bonga believes the public protector must desist from using her authority and standing as an honest and independent investigator to try and shame or embarrass public officials and politicians into taking her findings and recommendations seriously.

But where politicians launch criminally prohibited personal attacks on her integrity in order to try and discredit the uncontested factual findings in her reports, she may be forced to engage with the public directly about the findings of a report.

Ironically then, were public officials and politicians to stop launching personal attacks on the public protector as the honourable Bonga did (an attack that may well constitute a criminal offence), it would be unnecessary for the public protector to engage widely in the media about the findings of a particular investigation.

Some of the investigations conducted by the public protector relate to the unlawful or possibly criminal conduct of state officials or members of the government. In such cases any engagement about the findings of such a report will inevitably be viewed as “political in nature”. When it is revealed that a politician has acted unlawfully or has unlawfully benefited from public funds, such a revelation inevitably has political consequences as it lowers the standing and the trust of that politician in the eyes of ordinary voters.

This does not mean the public protector who made the findings and then talked about them is making statements of a political nature. She is making statements based on her investigations and findings.

The person to blame for the bad publicity is of course the politician, not the public protector. To blame her and to say that she makes statements that are political in nature is nothing more than blaming the messenger. It is a bit like attacking a person for calling out another person on his or her racism, sexism or homophobia.

Interestingly, the honourable Motshekga may well have had a point when he argued that there is a costly duplication of powers of some chapter 9 institutions.

I am not sure he actually read the Report on Chapter 9 institutions prepared by the ad hoc Committee of the NA chaired by the late Kader Asmal. If he did, he would know that the Report found that the mandates of the South African Human Rights Commission, the Commission for Gender Equality and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities do overlap.

The Asmal Report recommended that these three bodies – along with the Pan South African Language Board – be amalgamated into one “super” Human Rights Commission, empowered and resourced to assist ordinary citizens with enforcing their human rights.

Because it is prohibitively expensive for almost all of us to approach a court of law when our rights are being infringed, both private institutions (especially big companies) and state officials are guilty of undermining the basic rights of citizens – especially the vulnerable and marginalized citizens in our society.

Creating a “super” Human Rights Commission with the powers and resources to investigate and resolve human rights complaints would empower citizens vis-à-vis powerful private and public institutions. It will help to affirm the human dignity of all and will create a body of similar stature as the public protector in the field of human rights protection.

Imagine such a “super” Human Rights Commission had the resources to investigate and deal with every single complaint about the systemic racism, sexism and homophobia that still plague our country; the racists, sexists and homophobes across the country would quake in their boots – just as the politicians now do when they hear the current public protector is going to investigate them.

If our government was truly serious about restoring the human dignity of all citizens, it would take down the Asmal Report from the shelf where it has been gathering dust and would be discussing ways of implementing these radical proposals aimed at protecting ordinary citizens from the most flagrant human rights abuses.

In an ideal world Mathole Motshekga and the other members of the justice portfolio committee would be spearheading such a move instead of attacking the public protector for doing what she has been constitutionally tasked to do.

NPA crisis: Open warfare was just the beginning

Politically the appointment by President Jacob Zuma of Mxolisi Nxasana as National Director of Public Prosecutions (NDPP) – and the subsequent eruption of open warfare between various factions inside the National Prosecuting Authority (NPA) – has been a monumental embarrassment for our government. But the instruction allegedly subsequently issued by Justice Minister Michael Masutha to NPA leaders not to comment on any organisational matters was almost certainly illegal, as it interfered with the independence of the NPA.

Regardless of the legal technicalities or the merits of his appointment, it is clear that President Jacob Zuma should never have appointed Mxolisi Nxasana as NDPP.

The appointment was a monumental political blunder as it further eroded the legitimacy of the NPA. The organisation’s credibility had already been badly dented by the various scandals and political controversies which have plagued that body ever since it first started investigating allegations of corruption against President Jacob Zuma more than ten years ago.

It has now emerged that Nxasana had previously twice been convicted of assault, and – according to the mother of one of his former lovers – had also assaulted his former lover and is thus allegedly a women beater.

Politically, it matters not that Nxasana may well today be a man of the highest integrity who will always act in a fearless manner to apply the law impartially. What matters is that the unsavoury facts about his criminal record and allegations of past involvement in gender-based violence had given his many enemies ammunition to tarnish his name and to further discredit the integrity of the NPA.

Not that his enemies inside the NPA are necessarily people of high integrity. Nxasana fingered both Nomgcobo Jiba (who acted as NDPP before Nxasana’s appointment) and Lawrence Mrwebi (who heads the NPA’s specialised commercial crimes unit) as his enemies, working to oust him from office. Both have had their honesty called into question by court judgments.

Earlier this year the KwaZulu-Natal Local Division of the High Court found in Booysen v Acting National Director of Public Prosecutions and Others that  Jiba, had misled the court when she had claimed that she had considered four statements before deciding to prosecute. As the Court stated:

In response to Mr Booysen’s assertion of mendacity on her part, there is a deafening silence. In such circumstances, the court is entitled to draw an inference adverse to the NDPP.

The character of Lawrence Mrwebi was also torn to shreds in the judgment of the North Gauteng High Court in Freedom Under Law v National Director of Public Prosecutions and Others.

It is therefore difficult to come to grips with the exact contours (and the political significance) of the toxic infighting that is destabilising the NPA.

The independent media often report on these fights in a simplistic manner – as if these squabbles simply relate to disagreements between those whose only aim is to protect President Zuma from prosecution and those who are prepared to enforce the law without fear, favour or prejudice.

I suspect that the matter is far more complex.

Not that some of those NPA leaders involved in what often appears to be petty squabbles about power and positions do not see loyalty towards President Zuma as the pivotal issue.

On Wednesday the suspended head of the NPA’s internal integrity unit, Prince Mokotedi, phoned in to a Gauteng radio station and made the remarkable statement that he welcomed the opportunity to clear his name at a disciplinary hearing:

because it will be the first time a so-called Zuma man will come out and enter the public platform to put across my side, or their side, of the story.

Whether there are indeed a “Zuma camp” and a camp opposed to President Zuma inside the NPA may be of less concern for many ordinary citizens concerned about the prosecution of criminals. For many citizens of more concern would be the fact that the political infighting must surely have affected the morale of NPA members as well as the efficiency of that organisation.

These squabbles may well make it more difficult for ordinary prosecutors to get on with the job of prosecuting those accused of crime and of achieving high conviction rates.

This is why even those citizens who could not care less that some politicians and well connected businessmen and women are (for political reasons) not being prosecuted for corruptions while political enemies of the dominant faction inside the ANC may be targeted for prosecution must worry about the chaos and infighting at the NPA.

When the organisation is ripped apart because of political infighting, when its legitimacy is destroyed by political meddling, when morale plummets and the good prosecutors start to leave the sinking ship, it becomes more difficult for the NPA to go after ordinary criminals (of the non-political kind) and leave us all more vulnerable to criminals.

Moreover, where perceptions take root that the NPA is not independent and that it takes decisions on who to prosecute for corruption and fraud (and who not to prosecute) based on the suspects’ political affiliations or his or her access to leaders of the dominant faction of the governing party, the legitimacy of the entire criminal justice system is called into question.

It is then when every two-bit crook will try to undermine the NPA and the criminal justice system by making wild allegations that he or she is being prosecuted as part of a political conspiracy.

It is for this reason that section 179(4) of the Constitution states that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”.

Because section 179(6) further states that the “Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority” it is often wrongly assumed that the NPA operates under the control of the Minister of Justice and that it is therefore not a truly independent body but one directed by the Minister.

But as the Supreme Court of Appeal explained in National Director of Public Prosecutions v Zuma although “these provisions may appear to conflict… they are not incompatible”. There is nothing wrong with the Minister interacting with the NPA, discussing issues relating to the prosecution of criminals and even making suggestions on how best to solve internal disputes. But what the Minister is not authorised to do is to instruct anyone in the NPA to do or not to do something. That is the job of the NDPP.

As the SCA made clear in the Zuma judgment:

[A]lthough the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.

The fact that the NPA is independent and that the Minister cannot instruct its members to do or not to do something, but can ask it to provide it with information in order to exercise final responsibility for the NPA, is further made clear by various other provisions of the NPA Act that give effect to section 179 of the Constitution.

Section 32(1)(a) of the Act requires members of the NPA to serve “impartially” and to exercise, carry out or perform their powers, duties and functions “in good faith and without fear, favour or prejudice” and subject only to the Constitution and the law.

Section 32(1)b) further prohibits anyone (including the minister or the president) from improperly interfering with the NPA in the performance of its duties and functions. Where somebody interferes in the affairs of the NPA this constitutes a criminal offence.

Section 33(2) reaffirms that the minister must exercise final responsibility over the NPA and obliges the NDPP, at the request of the minister, to furnish the latter with information or a report with regard to any case and to provide the minister with reasons for any decision taken.

To protect this independence of the NPA neither the Minister of Justice nor the president can easily remove the NDPP from office. Section 12(6) of the NPA Act states that the president may provisionally suspend the NDPP, pending an inquiry into his or her fitness to hold the office of NDPP.

However, the president can only remove the NDPP from office on account of the following objective criteria:

(i) for misconduct;

(ii) on account of continued ill-health;

(iii) on account of incapacity to carry out his or her duties of office efficiently; or

(iv) on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

When Vusi Pikoli was removed from office this was almost certainly done unlawfully as – objectively – there was no clear evidence that Pikoli had been guilty of misconduct or was no longer fit and proper.

If Pikoli had pursued his case in court he would almost certainly have been reinstated. The reason for this is that a court would have asked whether – objectively – the Ginwala Inquiry provided any proof that Pikoli had been guilty of misconduct. As it did not, there was no legal basis for his removal.

This means that if an NDPP is prepared to fight for his job it will not be easy for the President to remove him – especially not on the basis of having been convicted many years ago of a criminal offence.

As President Zuma ponders how to fix the political mess created by his appointment of Nxasana as NDPP, his lawyers – if they are reasonably well informed – will warn him to think twice before attempting to remove him from office, given the difficulty of doing so in a legally valid way.

Tlakula: Stark truth, stark choice

The findings of the Electoral Court that the Chairperson of South Africa’s Electoral Commission Pansy Tlakula had acted unlawfully and is hence guilty of misconduct warranting removal from office, leave the National Assembly with a stark choice. Either it ignores the damning findings of impropriety on the part of Tlakula made by three different independent bodies and destroys the credibility of the Electoral Commission, or it takes action against Tlakula and recommends her removal from office.

The judgment of the Electoral Court in United Democratic Movement and Others v Tlakula and Another is another spectacular vindication of the Public Protector and the work she does.

In essence the judgment confirmed the findings of the Public Protector as well as of an independent report commissioned by the Treasury, leaving little doubt that Adv Pansy Tlakula abused her position when she was CEO of the Electoral Commission to ensure the awarding of a lease to a company in which her “friend” and business partner had a substantial stake.

This was a costly favour done for a “friend” at taxpayers’ expense. The Court confirmed that the unlawful flouting of prescribed procedures in securing the lease of new premises for the Electoral Commission led to the wasting of at least R130.8 million of public money.

Moreover, as CEO of the Electoral Commission Tlakula also secured R59,918,380 worth of furnishings for the new office without following the required tender procedure.

As the Court pointed out, the expenses appear to have been incurred “with little or no regard to what the actual cost was”. In fact, Tlakula “had little concern for what things cost and merely bought what [she] wanted”.

This included R957,000 spent on “brushed steel plant pots” (nice to have, I guess); R482,942 on gym equipment; and, tellingly, no less than R898,942 on office furnishings for Tlakula’s office.

The court found that this wasting of money was not a mere mistake and could not be justified on the basis that Tlakula was ignorant of the process. She deliberately flouted the law with the aim of favouring a company in which her “friend” had a stake. The court summarised the matter as follows:

Having deliberately embarked upon an attenuated tender process, the respondent [Adv Tlakula] chose not to abide by the requirements of the law. The respondent’s reference to an error having been made (in hindsight) is refuted by her own evidence that she deliberately took the decision not to insist on the lawful procurement process to be followed. She chose not to abide by the law. Her actions in this regard are unlawful and as such, in our view, constitute misconduct. Save for the urgency issue, which is untenable, the respondent provides no justification for her deliberate decision to break the law. Once the respondent had taken this unjustifiable decision, a plethora of unlawful actions followed. They include the failure to advertise the requirements of the Commission according to the law and a failure to implement the three tiers of bid specification, evaluation and determination.

Perhaps the most damning aspect of the judgment is that it found that in defending herself Adv Tlakula was less than honest. She previously provided one explanation of her actions to the National Assembly (that she deliberately circumvented the prescribed procedures because of the urgency of the matter) before providing a completely contradictory explanation to the Electoral Court (that she made an honest mistake as she was unaware what the prescribed procedures were).

The striking incredulity of the respondent’s version of the making of a mistake appears to be an ex post facto attempt to justify that which cannot be rationally explained. The respondent cannot exercise a discretion deliberately not follow the prescripts and then claim that not to have done so was simply a mistake. One of the versions cannot be true.

In the face of a finding by a forensic report that the “procurement process followed was not fair, equitable, transparent, competitive, or cost-efficient” and that “some of the expenditure could have been avoided had reasonable care been taken”, the court rejected claims by Tlakula that the winning bidder was not unlawfully favoured by her actions and that her actions did not lead to a loss of funds by the Electoral Commission, stating:

Objectively, this statement, made under oath by the respondent, is untrue.

The judgment does not explain why Adv. Tlakula would have flouted the law in such a blatant manner, wasting millions of public funds in the process. However, it does quote from a recent Constitutional Court judgment, which explains why following prescribed tender procedures are so important.

In AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency, and Others the Constitutional Court said:

…deviations from fair process may themselves all too often be symptoms of corruption or malfeasance in the process. In other words, an unfair process may betoken a deliberately skewed process. Hence insistence on compliance with process formalities has a three-fold purpose: (a) it ensures fairness to participants in the bid process; (b) it enhances the likelihood of efficiency and optimality in the outcome; and (c) it serves as a guardian against a process skewed by corrupt influences.

In terms of section 7(3)(a) of the Electoral Commission Act the recommendation by the Electoral Court must now trigger a process in which the relevant committee of the National Assembly must first decide whether to accept or reject the factual findings of misconduct made by three independent investigations against Adv. Tlakula.

If the National Assembly accepts the factual findings of unlawful action and misconduct, then it must decide whether to recommend to the President that she be removed from office.

Given the findings against her, it would be troubling of the National Assembly fails to act against Adv Tlakula. The reasons for this conclusion are spelled out by the Electoral Court.

First, the Court found that the conduct of Adv Tlakula “risks the impairing of public confidence in the integrity and impartiality of the Commission”. In the absence of swift action perceptions that the independence of the Commission has been tainted, may well take hold. Moreover Adv Tlakula:

compromised the integrity and independence of the Commission in violation of a requirement that such integrity and impartiality must be above suspicion and beyond question.

In Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 the Constitutional Court explained why the integrity of a body like the Electoral Commission is so important:

They perform sensitive functions which require their independence and impartiality to be beyond question, and to be protected by stringent provisions in the Constitution.

It is not only where the independence and impartiality of the Commission is in fact compromised that the National Assembly would have a duty to act. The mere “appearance or perception” of a lack of independence or impartiality will be devastating for the credibility of the Commission. Quoting from a Canadian judgment the court explained the matter as follows:

Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.

There is absolutely no evidence that the integrity of the recent election was compromised by Adv Tlakula’s involvement in helping to oversee it. In the absence of evidence that the voting or counting process was not free and fair, the integrity of the election is therefore not at stake.

But because perceptions matter, the various findings of unlawful conduct and especially the findings by the Court which casts doubt on the honesty of Adv Tklakula, now require swift action from the National Assembly to restore confidence in the Electoral Commission.

In the absence of such swift conduct, those who are not happy with the outcome of a particular election will exploit the doubt about the integrity and impartiality of the Chairperson of the Electoral Commission to challenge the validity of electoral outcomes. That will be bad for democracy and bad for South Africa.

Nkandla report in court: Zuma’s interest or legal considerations?

News that the security cluster of ministers is to approach a High Court to review and set aside the public protector’s report on Nkandla does not come as a surprise. While it is difficult to see any plausible legal justification for the review, such a review will tie up the report in the courts for a year or two and will allow attention to be diverted away from the damning findings made in the report against President Jacob Zuma – at least for the foreseeable future.

According to acting government spokesperson Phumla Williams, the government is seeking a review of the public protector’s Nkandla report “to seek clarity” from the court on aspects of the report. In an interview on SAFM Ms Williams explained that the government had asked the public protector to discuss her report with them with a view to “clarify” it. As the public protector refused to revisit her final report, Ms Williams argued, it was hoped the court would provide the necessary “clarity”.

If this is indeed an aim of the government in having the public protector’s Nkandla report reviewed by a court, it demonstrates a worrying lack of basic knowledge of (and respect for) the Constitution and, most notably, for the independence of the public protector as guaranteed in section 181(2) of the Constitution.

As the Constitutional Court confirmed in at least two judgments, Chapter 9 institutions are not part of government and are thus outside of government and independent from it. Moreover, as stipulated in section 181(4) of the Constitution, no organ of state may interfere with the functioning of the public protector. As an ad hoc committee report of Parliament made clear, this means that neither parliament nor the executive could interfere with decisions taken by the public protector relating to a specific investigation.

An attempt to get the public protector to revisit a final report and to “clarify” aspects of it, constitutes a prima facie attempt to interfere with the independence of the public protector. If the public protector had indeed agreed to assist government to “clarify” aspects of her final report, she would have acted in a manner in breach of her constitutional duty to act independently and without fear, favour or prejudice.

For this reason, no judge in South Africa who is even vaguely familiar with the Constitution and the jurisprudence of the Constitutional Court is ever going to agree to interfere with the findings made by an independent Chapter 9 institution by “clarifying” the Nkandla report.

It just ain’t gonna happen.

This does not mean that a report issued by the public protector cannot be reviewed by a court and set aside on the basis that its findings are irrational. If a court finds that no rational person could have made the findings contained in a report of the public protector (based on the facts exposed in the report), a court can set aside that report as invalid.

However, rationality review sets an extremely exacting standard to meet and it will only be in the most exceptional circumstances that a court will set aside the findings contained in a report of the public protector on the basis that these findings are irrational.

As the Supreme Court of Appeal (SCA) indicated in the judgment of Public Protector v Mail & Guardian a court will not direct the public protector as to the manner in which an investigation is to be conducted.

A proper investigation might take as many forms as there are proper investigators. It is for the Public Protector to decide what is appropriate to each case and not for this court to supplant that function…. It would be invidious for a court to mark the work of the Public Protector as if it was marking an academic essay.

What is required, said the SCA, is that an investigation “must have been conducted with an open and enquiring mind” as an “investigation that is not conducted with an open and enquiring mind is no investigation at all”.

Rationality review does not allow the court to enquire into the correctness or the wisdom of the findings contained in a report. Even where the investigation and the findings of the public protector could be faulted or even where reasonable people could differ on whether the conclusions reached by the public protector in a report were correct, this will not render the report invalid.

However, where no rational person could possibly have made the findings contained in a report – based on the facts revealed in that report – a court would have a duty to set the report aside.

This means that it would not be sufficient for the security cluster ministers to point to contradictions between their own exculpatory report (in which they investigated and exonerated themselves) and the public protector’s report and then to argue that the findings in her report were irrational.

It is clear that the president and his security cluster ministers do not agree with some of the findings of the public protector’s report on Nkandla, are aggrieved that the latter report did not exonerate them all like their own report did, and prefer the findings of the government task team report. Who would not prefer a report conducted by your own underlings and exonerating you from any wrongdoing?

Unlike the ministerial task team who supposedly “investigated” the Nkandla scandal, the public protector is an independent constitutional body tasked with investigating such matters without fear, favour or prejudice. While the former report has no constitutional standing, the latter does. The former was not an independent investigation, the latter was. The former was a slap-dash effort of less than 50 pages; the latter was a more than 400 pages long.

But legally this is not the crux of the matter. What is the crux of the matter is that no court in South Africa is going to review and set aside a report conducted by an independent constitutional body because it conflicts with a report drafted by the very people implicated in wrongdoing or by people whose bosses are implicated in wrongdoing.

For this reason I thank my lucky stars that I am not the lawyer tasked with trying to convince a court that the public protector’s report on Nkandla must be set aside because it is irrational. The potential embarrassment and humiliation facing that lawyer is not something that I would wish on my worst enemy.

Having said this, if I had to attack the public protector’s Nkandla report on the basis of irrationality, I would focus on the finding that the president never meant to lie to Parliament. The facts contained in the report clearly suggest otherwise.

Moreover, the president refused to provide the relevant answers and documents requested of him, as he is obliged to do by the Public Protector Act. Prima facie this refusal to co-operate to provide the public protector with the answers that could have proven that he did not lie to Parliament constitutes a criminal offense.

The most plausible interpretation of the facts contained in the report suggest that the president did indeed lie to Parliament in breach of the Executive Members Ethics Code and then refused to co-operate with the public protector to cover up this lie.

The finding that the president did not lie to Parliament was therefore, in my opinion, clearly wrong. Whether it was irrational, thus rendering the report invalid is another matter.

Ms Williams also made another, to my mind, bizarre statement today. “It is the ministers’ view that the public protector’s report and the investigation she conducted trespass on the separation of powers doctrine and… section 198(d) of the Constitution which vests national security in Parliament and [the] national executive,” she said.

This argument is, quite frankly, a legal nonsense. I cannot imagine that any lawyer vetted it.

First section 182 of the Constitution states that the public protector has the power, as regulated by national legislation, to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice”. The only matter which the Constitution prohibits the public protector from investigating is court decision.

Moreover, the Public Protector Act makes it clear that while the functions of the public protector include those that are ordinarily associated with an ombudsman, he or she may investigate, amongst other things, any alleged improper or dishonest conduct with respect to public money, any alleged offence created by specified sections of the corruption legislation with respect to public money, and any alleged improper or unlawful receipt of improper advantage by a person as a result of conduct by various public entities or functionaries. This includes, of course, the president, which, it may surprise the security cluster Ministers to hear, is not above the law.

Secondly, section 198(d) of the Constitution states that: “National security is subject to the authority of Parliament and the national executive.” It affirms that issues of national security cannot be exempted from civilian oversight. Parliament and the national executive have the final authority to direct decisions about national security, but nothing in the section excludes the public protector from investigating matters alleged to be related to national security.

To hold otherwise would be to argue that the president and his government is above the law as long as they claim an issue relates to national security. The argument is one in favour of impunity and lawlessness.

Third, in his reply to the National Assembly in which he responded to the findings of the public protector, the president stated that: “The Security Cluster Ministers, the SIU and the Public Protector all have a constitutional and a legislative mandate to conduct their respective investigations”.

The president has therefore already acknowledged that the public protector was empowered to investigate the matter, despite allegations that it relates to “national security”. The statement today thus directly contradicts the president’s previous acknowledgement that the public protector has the legal mandate to investigate the Nkandla matter.

For these reasons it is difficult to see how the decision to ask the court to review the Nkandla report can be based on any legal considerations. This is therefore almost certainly not a decision based on law, but instead a decision based on what is in the best interest of President Zuma (if not the ANC).

That Nkandla SMS: why it is (legally) complicated

Courts are often not well placed to act as mediators in highly charged political disputes. The ANC’s attempt to use the court to deal with the DA’s claim that the Public Protector’s Report “showed that Zuma stole your money to build his R246 home” is a case in point.

Election campaigns tend to get extremely heated and the rhetoric overblown. Leaders of political parties do not only make wild promises they know they can never keep (we all know there won’t be 6 million jobs – or even job opportunities – after the election), they also hurl insults and accusations at their opponents that might ring true for some voters but – from a legal perspective – are difficult or impossible to prove.

When ANC politicians claim that the DA is a racist party, that it does not care about the poor or that it will bring back Apartheid if elected, we all know that these claims are part of the ANC’s election rhetoric. Some voters will take it seriously and some will not. The best way the DA could counter such claims is to demonstrate, through their words and action, that the claims are untrue.

Similarly, when the DA claims that President Jacob Zuma has stolen taxpayers’ money, that ANC leaders are all corrupt or that the ANC will undermine the Constitution, we all know that this is part of the DA’s election rhetoric. Some voters will believe the claims and some will not. Surely the best way for the ANC to counter such claims would be to show, through words and deeds, that the claims are untrue.

The ANC chose not to follow this route to challenge the accuracy of the SMS sent by the DA that the Public Protector Report shows that President Zuma has stolen taxpayers’ money. Perhaps because it thought it would not be able to win the argument or because it feared that the damage done to the ANC brand by the Nkandla scandal could not be repaired through reasoned debate and argument alone, it approached the court to try and stop the DA from making these claims.

The ANC relied on section 89(2)(c) of the Electoral Act which prohibits any person from publishing any false information with the intention of influencing the conduct or outcome of an election and on item 9(1)(ii)(b) of the Electoral Code which prohibits any registered party or candidate from publishing false or defamatory allegations in connection with an election in respect of a candidate or that candidate’s representatives.

If a court were to interpret these provisions strictly, it would have a drastic effect on what could and could not be said during an election campaign. It would then become illegal to make accusations about a political party or its candidates unless it could easily be shown that the accusations are true.

A large amount of statements made by ANC politicians about opposition parties and quite a number of statements made by opposition parties about the ANC would immediately be rendered illegal during an election campaign.

It will always be very difficult, if not impossible, to show that many of the accusations made during an election campaign are indeed true. A strict interpretation of the Electoral Act would therefore impose a drastic limit on what could be said during an election campaign and would impoverish political debate and contestation.

As the distinction between facts and opinion based on those facts can be very difficult to maintain, politicians would have to curb their exuberance when making claims about opposition parties and their candidates.

As a result, those taking part in the election campaign would be unable to raise many critical questions about their opponents and voters would be deprived of opinions about political parties and their candidates that may otherwise have played a pivotal role in their decision who to vote for.

A narrow, literal, interpretation would therefore leave the relevant sections of the Electoral Act open to constitutional challenge.

It may be for this reason that the High Court reinterpreted the relevant sections of the Electoral Act in line with section 39(2) of the Constitution. This section requires a court when interpreting any legislation to “promote the spirit, purport and objects of the Bill of Rights”.

If words in legislation are reasonably capable of an interpretation in line with the provisions of the Bill of Rights, a court must give those words the constitutionally valid meaning.

The court thus rejected the argument, advanced on behalf of the ANC, that section 89(2) created strict liability and prohibited false statements even where those who made them believed them to be correct.

Instead it interpreted the section in the light of the right to freedom of expression and in the light of section 1 of the Constitution, which states, inter alia, that ours is a state based on the values of a “multi-party system of democratic government, to ensure accountability, responsiveness and openness”.

The judgment thus, somewhat controversially, introduced the principles developed in law of defamation regarding fair comment when interpreting the relevant provisions in the Electoral Act.

In effect, the court found that you would not be in breach of the Electoral Act every time you make what turns out to be a false statement about a candidate or political party. You will only be in breach of the Act if your statement is false and does not amount to “fair comment”.

The court noted that in the law of defamation regard must be had to who is being targeted. Politicians and public figures must not be too thin-skinned about comments made about them. What may be defamatory of a private person may not necessarily be defamatory of a politician or a judge. This is so because right-thinking people will probably not likely greatly be influenced in their esteem of a politician by derogatory statements made about him or her.

Interpreted in the light of the law of defamation, a comment based on facts need not commend itself to the court, nor need it be impartial and well-balanced. Fair comment requires only that the view must – objectively speaking – be an honest and genuine expression of opinion about a set of facts and must not disclose malice.

The idea is that divergent views should be aired in public and subjected to debate and scrutiny because it is through such debate that bad ideas will be exposed and shown to be wrong-headed. Untrammeled debate enhances truth-finding. If the relevant sections of the Electoral Act were interpreted too strictly, it would make untrammeled debate very difficult, if not impossible.

Given this expansive interpretation of the relevant provisions of the Electoral Act, the court found that the comments made by the DA in its SMS constituted fair comment.

This was so because the DA SMS did not state as fact that the Public Protector Report found that President Jacob Zuma stole money. Instead the SMS claimed that the Report “show[ed]” that he did so.

In this regard the court noted that the Public Protector’s Report found that government created a license to loot situation during the Nkandla construction. It also noted that the president was aware of the upgrades but never raised any concerns as to the scale and cost of the upgrade, that he thus tacitly accepted the upgrades and that he improperly benefited in the process.

The court thus found that the SMS expressed a conclusion which could be fairly reached by a person reading the report.

Although the judgment wisely attempted to narrow the scope of section 89(2)(c) of the Electoral Act and item 9(1)(ii)(b) of the Electoral Code in order to preserve a space in which robust free and fair campaigning could occur, another court may well find that the wording of the Electoral Act could not reasonably be interpreted in the way the court interpreted it.

However, I would guess that if another court declined to follow the reasoning of the High Court, and instead interpreted the relevant sections to prohibit all claims made about a political party or its candidates that cannot be shown to be true, it would render these sections of the Electoral Act unconstitutional for breaching the right to freedom of expression.

There is therefore a possibility that an appeal of the judgment by the ANC may be successful. If it is successful, then it would leave the relevant sections open to constitutional attack.

It may therefore well be that after a lengthy legal battle, more or less the same outcome reached by the High Court is reached by another court – but based on different grounds, namely that the sections invoked by the ANC are unconstitutional.

The unbearable lightness of being a Nkandla Report critic

Like any judgment in a court of law, a report of the Public Protector is not above criticism. Although it is a criminal offence to insult the Public Protector or to say anything about an investigation that would have constituted contempt of court if it had been said of court proceedings, criticism of the findings of the Public Protector should be welcomed. However, some of the criticism levelled at the Public Protector’s Nkandla Report is so far off the mark that no rational person, acting in good faith, could possibly have made it.

The investigation and report of the Public Protector into the use of public funds for large-scale construction at President Jacob Zuma’s private homestead near Nkandla, and into Zuma’s denials about this to the National Assembly, can indeed be faulted.

This is illustrated by the failure of the Public Protector to use her extensive legal powers to try to prevent the president from thwarting the investigation and her failure to act more decisively to try and force him to comply with his legal duties.

Section 7(4) (read with section 9(3)) of the Public Protector Act renders it a criminal offence for any person to refuse or fail to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated. It also renders it a criminal offence to refuse to answer questions duly put to that person by the Public Protector about an investigation.

However, when the president failed to answer most of the relevant questions put to him by the Public Protector and further failed to provide evidence of the alleged bond (as he was legally required to do), the Public Protector did not force him to comply with the law.

Neither did she refer the president’s failure to answer most of her questions and to furnish her with information about the alleged bond to the police or the National Prosecuting Authority for further investigation and possible criminal prosecution.

The Public Protector also did not make use of section 7A of the Act to obtain a search and seizure warrant allowing her office to search the private home and the office of the president for documents relating to the investigation which the president had illegally refused to hand over to her office.

Furthermore, the Public Protector found that the claim made by President Zuma to the National Assembly that his family had built its own houses and the state had not built any for it or benefited them was not true. However, curiously, she found that this false statement could have been a bona fide mistake.

This finding is almost certainly wrong. Given the extensive evidence of the president’s knowledge of (and involvement in) the project, it is not credible to believe that the president did not intend misleading the NA when he made this false statement.

After all, her report contains evidence that the president was shown designs for the swimming pool for his approval. How could he then in good faith have told the National Assembly that he and his family had paid for all non-security related construction at Nkandla?

But those who have been criticising the Nkandla Report have not done so because they are worried that the president’s involvement in the scandal was not investigated as vigilantly as it could have been. Instead, they have bizarrely criticised the Report for making any findings of wrongdoing against the president and for requiring him to repay a small part of the amount with which he and his family had unlawfully been enriched.

A good example of this flawed and entirely biased reasoning can be found in an article penned by attorney Krish Naidoo, and published in The New Age.

It is clear from the article that Mr Naidoo did not read the Public Protector’s Report.

He claims that the Public Protector had
invoked section 140 of the Constitution in justifying her finding that the president had not complied with the Executive Members Code of Ethics. A quick word search of the Report confirms that section 140 is not mentioned in the Report at all. In fact, the Public Protector correctly cited section 96 of the Constitution in support of her findings.

It is unclear why Mr Naidoo would claim otherwise.

Although the argument is difficult to follow, Mr Naidoo also seems to claim that the president’s Oath of Office in Schedule 2 of the Constitution does not contain words to the effect that the president must “protect and promote the rights of all people within the republic”. This is a curious claim as a quick perusal of Schedule 2 immediately reveals that these exact words are contained in the Schedule.

Why Mr Naidoo would make such a clearly untrue statement is not clear.

Mr Naidoo also claimed that the Public Protector plagiarised a statement that “Our government is the potent, the omnipresent teacher.” However, on page 4 of her Report this statement – serving as one of the mottos to the Report – is clearly attributed to Justice Louis D Brandeis, US Supreme Court Justice.

Once again it is unclear why this false claim of plagiarism was made at all. Even if Mr Naidoo had only read up to page 4 of the Report, he would have discovered that the claim of plagiarism couldn’t be sustained.

In disputing the Public Protector’s finding that the president was in breach of section 2 of the Executive Members Ethics Code, Mr Naidoo argued that the Code only applied in cases where the president had failed to comply with a constitutional duty and that no such duty to protect state resources can be derived from the Constitution.

This is not true as section 2 of the Code places a wide-ranging set of legal duties on, amongst others, the president to:

“(a) perform their duties and exercise their powers diligently and honestly;

(b) fulfill all the obligations imposed upon them by the Constitution and law; and

(c) act in good faith and in the best interest of good governance, and

(d) act in all respects in a manner that is consistent with the integrity of their office or the government.”

This means, even where no constitutional or other legal duty is imposed on the president to protect state resources, the Code – imposing a broad ethical duty that can be legally enforced – requires him at all times to act in good faith and in the best interest of good government.

Recall that the Executive Members Ethics Act, which gives effect to section 96 of the Constitution, authorises the Public Protector to investigate breaches of the Executive Members Ethics Code. In fact this Act places a legal duty on her to do so.

In other words, the Executive Members Ethics Act, read with the Code, place a legal duty on the president to act ethically to pursue what is in the best interest of good government.

Where the president fails to stop unlawful action which has the effect of financially benefitting him in ways that go far beyond security related upgrades, it can surely not be said that he had acted in good faith in the best interest of good government.

But this is not the end of the matter. Even if – like Mr Naidoo – one wrongly focused only on the sub-section of the Code that requires a constitutional or legal duty to have been breached before there can be any finding of wrongdoing by the president, it is clear that the various sections of the Constitution (read together) impose a constitutional duty on the president to protect state resources.

This is so because section 83(b) of the Constitution states that the president “must uphold, defend and respect the Constitution as the supreme law of the Republic”. Section 96(2)(b) further states that the president – as is the case with other members of Cabinet – may not “act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

Section 195(b) of the Constitution furthermore places a legal duty on the public administration to promote the “[e]fficient, economic and effective use of resources”.

All these sections, read together, clearly place a constitutional duty on the president to prevent a situation where his public duties as president and his private interests collide, as was clearly the case here.

Moreover, where state resources are used improperly to benefit the president and his family in ways that have nothing to do with his security, where he clearly is aware that the resources have been spent in this way and where he fails to halt this, he is clearly in breach of his constitutional obligations as set out above. This is so because he has then not promoted efficient, economic and effective use of resources as he is constitutionally obliged to do.

This is underscored by the fact that the president is the head of the cabinet and the executive authority of the Republic is vested in him. As a cabinet member he is individually and collectively accountable for the actions of the government.

But as head of the executive, ultimate responsibility for the use of state resources rests with the president. In the terminology of the American Presidency, our constitution clearly enforces the principle that: “the buck stops with the president”. To hold otherwise would be to ignore the fact that the executive authority of the Republic vests in him.

While the Public Protector Report is not perfect, the bizarre and sometimes completely untrue claims made with the aim of discrediting the Report are worrying. It suggests either that critics have not read the Report or are unwilling or unable to understand the most basic arguments contained in the Report, or that they are willfully trying to mislead the public by making claims that they know are untrue.