Constitutional Hill

corruption

James Bond and the National Key Points Act

The National Key Points Act, passed by the apartheid Parliament in 1980 to protect the PW Botha regime and those who collaborated with it, is a constitutional abomination. Yet, when civil society groups requested the list of National Key Points from the Minister of Police in terms of the Promotion of Access to Information Act (PAIA), this request was refused on the grounds that making the list public would provide information to “dark forces” out to destabilise South Africa. The Gauteng High Court had no problem in rejecting this laughable claim and ordered the release of the list.

Secrecy becomes a habit for those with something to hide. No wonder the apartheid state was notoriously secretive. Although the rumour that PW Botha’s matric certificate was classified information could never be confirmed (let’s just say that he was no academic overachiever), much else in apartheid South Africa was classified information. When the apartheid state finally came crashing down in the early 1990ties the paper shredders worked overtime to destroy the (secret) evidence on extra-judicial killings, torture and other state crimes.

The National Key Points Act played its part in creating this web of secrecy and deceit. Although the list of National Key Points was never made public, citizens could be prosecuted for revealing information about security measures at National Key Points, creating a Kafkaesque world in which you could be sent to prison for something that you could not have known was a crime.

Sadly (but perhaps not surprisingly) the Act was never repealed or amended after the advent of democracy. It has, instead, been enthusiastically (but only selectively – more on this later) used to suppress information about facilities about which the public may ask awkward questions. A certain private home in rural KwaZulu-Natal comes to mind.

The Act allows the Minister to declare any place a National Key Point, among other reasons “whenever he considers it necessary or expedient for the safety of the Republic or in the public interest”. As the High Court pointed out this gives the Minister (now the Minister of Police) almost unfettered discretion to declare places National Key Points if he or she wants to keep information about it secret.

The declaration of a place as a National Key Point has some interesting consequences. Section 3 of the Act states that once declared a Key Point:

the owner of the National Key Point concerned shall after consultation with the Minister at his own expense take steps to the satisfaction of the Minister in respect of the security of the said Key Point.

Famously this provision was ignored after President Jacob Zuma’s private home was declared a National Key Point. It was argued that a cabinet decision on security upgrades at Presidential homes governed the Nkandla renovations. However, it is unclear how a policy decision taken by one branch of government, can trump legislation passed by another.

The Constitutional Court ruled in Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others that the executive cannot amend the provisions of an Act of Parliament as this would breach the separation of powers. The cabinet policy therefore could not amend the provisions of the National Key Points Act.

A fascinating legal question is whether a cabinet policy can be invoked to justify state-funded “security upgrades” at a National Key Point, given that the Act requires the owner to carry the cost of any security upgrades. In her report the Public Protector assumed that it could. But I would be surprised if a court found that the peremptory provisions in an Act of Parliament could be overridden by a cabinet policy.

Section 3B of the Act also requires the establishment of a “Special Account” which can be used to render financial assistance – including loans – to the owners of National Key Points required to improve the security on the property. This Special Account has never been created. This means another pivotal section of the National Key Points Act has not been complied with.

Section 10 of the Act further creates several criminal offences regarding National Key Points. Amongst others, it prohibits any person from furnishing “any information relating to the security measures applicable at or in respect of any National Key Point”.

When the list of National Key Points is kept secret it means that ordinary citizens may not know when they commit a crime relating to a National Key Point. The High Court correctly found that keeping the list of National Key Points secret was in conflict with one of the basic tenets of the principle of legality.

This is so because there can be no secret laws. “One of the central tenets underlying the common-law understanding of legality is that of foreseeability – that the rules of criminal law are clear and precise so that an individual may easily behave in a manner that avoids committing crimes.” For this reason alone, according to the High Court, the list of National Key Points had to be made public.

The state also had an obligation in terms of PAIA to make the list public. Section 11(3) of PAIA makes it clear that a requester of information need not justify a request for information held by the state. In contrast, if the state refuse to provide the information requested it is the state who has to justify its refusal.

In this case, the state failed to provide any evidence of why it was justified to keep the list of National Key Points a secret.

The High Court quoted extensively from the Constitutional Court judgment in President of the Republic of South Africa and Others v M & G Media Ltd to explain what was required from the state to justify a refusal to provide information held by it.

In order to discharge its burden under PAIA, the state must provide evidence that the record in question falls within the description of the statutory exemption it seeks to claim. The proper approach … is therefore to ask whether the state has put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld falls within the exemption claimed. The recitation of the statutory language of the exemptions claimed is not sufficient for the state to show that the record in question falls within the exemptions claimed. Nor are mere ipse dixit affidavits proffered by the state. The affidavits for the state must provide sufficient information to bring the record within the exemption claimed.

“Sufficient information” was never provided in this case to justify the secrecy. Instead the state alluded to “dark forces” that are out to destabilize peace-loving countries, like our own. By way of illustration, the state referred to the bombing of the mall in Nairobi as this supposedly shows “how vulnerable countries and their citizens are.” As the High Court remarked:

This is, self-evidently, an ill chosen example; ie, to compare a shopping centre being exposed to politically inspired violence, where the public congregate en masse, with a key point, is inapposite. However, it may be supposed that, upon a generous interpretation of the remark, it was intended simply to illustrate the generic exposure to unexpected violence that everyone experiences. Nevertheless, to give voice to a bland truism contributes nothing to a justification under PAIA.

In fact, the court found that the state wholly failed to provide any evidence for denying access to the list. The state claimed that making the list public would endanger the lives of people and was likely to endanger state security. But it did not provide any facts to back up this bold claim. On the contrary, the state itself had on previous occasions revealed that some places have been declared National Key Points, rendering its argument that such revelation threatens the security of individuals or the state difficult to accept.

As the High Court wryly remarked:

The rationale offered by the respondents is spoilt by the conduct of the Government itself, because evidence was adduced of ministers having furnished details of key points to Parliament for the whole world to know, including, presumably, those dark forces that lurk in wait to disturb our tranquillity. A further example of public disclosure of a key point adduced by the applicants includes the very public announcement that Nkandla, the private home of President Zuma, has been declared a key point.

The Court also rejected the state’s “James Bond defence”. Perhaps answering the question on whether the law has a sense of humour first posed by Justice Sachs in the Laugh it Off case, the High Court rejected this defence in the following manner:

In argument, counsel for the respondents, quite properly, was driven to concede that there was no evidential material disclosed in the papers to support the refusal. He contended that the predicament of the respondents was illustrated by the experiences of that well known gentleman adventurer and upholder of noble causes, James Bond, who, albeit it must be supposed, with his customary charm and grace, declined to disclose a fact to a questioner, because were he to do so, he would have to kill him. This is an interesting submission, which, alas, is spoilt by the absence of such an allegation under oath.

Hopefully the state will not appeal the judgment. If it does appeal, it will almost certainly lose again, wasting taxpayer’s money in the process.

But this judgment is only a partial victory for common sense and openness. The case did not deal with the larger question of whether the Key Points Act was unconstitutional. Given the untrammelled discretion given to the Minister to declare places National Key Points, aspects of the Act will almost certainly be declared unconstitutional if they were to be challenged.

But that question will only be definitely answered when the constitutionality of the Act is challenged in court. Hopefully the court will get the opportunity to answer this question in the near future.

Our own Olivia Pope won’t end corruption

Last week the Constitutional Court confirmed that Parliament had failed to comply with its previous judgment on the unconstitutionality of the legislation that created the Hawks. But the court also reminded us that no amount of legal tinkering could guarantee the unit’s effectiveness in combatting corruption. Institutions do not (on their own) stop corruption. People do.

When Parliament abolished the Scorpions because it was foolhardy enough to pursue corruption charges against President Jacob Zuma and other high profile politicians and replaced it with the Hawks, the move was met with shock and outrage by many of the same people who watch and enjoy the questionable actions of Olivia Pope in the television series The Fixer (Scandal in the US) and the depraved behaviour of Frank Underwood in the House of Cards.

It is as if people believed that an institution like the Scorpions could single-handedly end the culture of patronage that has become entrenched in our political system. The recent judgment of the Constitutional Court in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others reminds us that a corruption fighting body (as well as the courts) – while playing an important role – can only do so much to stop corruption.

The most telling aspect of the judgment can be found in an “End Note”, penned by Justice Johan van der Westhuizen in his partly concurring judgment.

Justice Van der Westhuizen acknowledges that corruption “threatens the very existence of our constitutional democracy” and that effective laws and institutions are needed to combat corruption. The Constitutional Court therefore has a duty to “ensure that legal mechanisms against corruption are as trustworthy and tight as possible”.

But courts can only do so much. A corruption-free society can only develop in the hearts and minds of its people – particularly the ones occupying positions of political and economic power. We need dedication to the spirit and high aspirations of the Constitution. Institutions are tools designed to help people realise their ambitions.  Much dedication is required on the part of those handling the tools.

As Justice Van der Westhuizen points out:

[E]ven the most sophisticated institutional design will require the exercise of discretion and therefore integrity on the part of – and trust in – the office-bearer. Thoroughly closing all perceived loopholes will guarantee little. The more procedures and processes we put in place to safeguard against corruption, the more plausible deniability we give to a corrupt actor if all the technical boxes have been ticked. Generally, abstract institutional designs cannot be corrupt. As we know, people can be.

These words should not come as a shock to those who have watched Olivia Pope strut around in her beautiful white dresses “fixing” other people’s problems by delivering stirring speeches, drinking many large glasses of red wine, her bottom lip occasionally quivering with emotion, while her murderous daddy goes around subverting the rule of law in between lecturing Olivia about how political power actually works.

If I understand Justice Van der Westhuizen correctly, he is saying that while institutions like the Scorpions or the Hawks could help to fight corruption if they were adequately independent, it is only when voters start punishing politicians and the parties they belong to for being corrupt or for not taking decisive action against their colleagues in their respective parties who are corrupt, that there would be a real incentive to end the scourge of corruption. The most effective mechanism to fight corruption is the democratic process itself.

But that depends on voters making the connection between the corruption (in both the public and the private sector) and their own circumstances; the lack of access to clean water or adequate toilets, the absence of decent housing, the long queues at the state hospital, the rude and inefficient service at the municipal office, the power cuts, the rubbish that remains uncollected in the streets.

This does not mean that an “adequately independent” corruption fighting body could not help to expose corruption. For this reason the Constitutional Court (in a majority judgment authored by Chief Justice Mogoeng Mogoeng) confirmed the unconstitutionality of several sections of the legislation relating to the establishment of the Hawks.

This legislation was amended by Parliament in a failed attempt to give effect to the Constitutional Court’s previous decision declaring aspects of the legislation unconstitutional for not creating and adequately independent corruption fighting body.

When a Bill purporting to give effect to the first Constitutional Court judgment was initially tabled in Parliament, it displayed little enthusiasm for the creation of an independent corruption fighting body.

It was not only that the “quality of the drafting could use some improvement” – as Justice Mogoeng wryly remarked – but also that the original draft did everything to ensure that the politicians remained in control of the Hawks and that the body would not be able to act independently from some of those it may have to investigate.

To its credit the Portfolio Committee fixed many of the clearly unconstitutional aspects of the draft Bill after several experts (full disclosure, I was one of those so called “experts”) pointed out that the draft legislation would never pass constitutional muster.

But, sadly, the Portfolio Committee ignored some of the important points raised during the deliberations, which has now led the Constitutional Court declaring invalid several sections of the legislation dealing with the establishment of the Hawks.

The Court examined each of the impugned provisions to determine whether they militate for or against a corruption-fighting agency, which, though not absolutely independent, should nevertheless be adequately independent in terms of both its structure and operations.  It used the following test to do so:

We say merely that public confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.

The majority of the Court declined to declare invalid the section of the law dealing with the appointment of the National Head of the Hawks by the Minister of Police after approval by the Cabinet (Cameron J in a dissenting opinion argued that the section was indeed unconstitutional). However, Chief Justice Mogoeng did provide an interpretation of the section that limits the discretion of the Minister and the cabinet to appoint the Head of the Hawks. The Court emphasised that only a “fit and proper” person could be appointed which means:

that the candidate must have the capacity to do the job well and the character to match the importance of the office.  Experience, integrity and conscientiousness are all intended to help determine a possible appointee’s suitability ‘to be entrusted with the responsibilities of the office concerned’. Similarly, laziness, dishonesty and general disorderliness must of necessity disqualify a candidate…. Since inconsequential experience and character flaws could not have enhanced the prospects of her appointment to that office, if she was nevertheless appointed, then a successful legal challenge may be mounted against that appointment.

The Court did invalidate the provision that allowed the Minister to renew the term of office of the National Head of the Hawks as this would clearly have compromised the independence of the unit. It also declared invalid sections of the law that would have empowered the Minister to suspend and eventually remove the National Head of the Hawks without any involvement of Parliament.

Other provisions of the Act, which gave far too much power to the Minister to decide which crimes could and could not be investigated by the Hawks and how it had to operate, were also declared invalid. The involvement of the Minister, said the Court, would have rendered:

the anti-corruption character of the [Hawks] dependant on whatever the Minister, in the exercise of her discretion, wants it to be.

This would not have been in accordance with the requirement to create an adequately independent corruption fighting body.

The judgment represents delicate balancing act. It is careful to respect, as far as possible, the policy choices made by Parliament, while protecting the “adequate independence” of the Hawks.

Whether this judgment will ultimately bolster the independence of the Hawks will depend to a significant degree on whether the National Head of the Hawks and those working for the unit are prepared to act in a fearless manner to fight corruption no matter where it might be found.

Even the most honest and diligent person would find this difficult to do – unless he or she can depend on support of those in power and, ultimately on that of ordinary voters; the very people who will be directly affected by corruption.

This suggests that until such time as an overwhelming majority of voters reject all forms of corruption – even when this is committed by a politician belonging to the political party they support or by a business leader they respect – the Hawks will not be able to turn the tide against a phenomenon that “threatens the very existence of our constitutional democracy”.

Why report of Nkandla ad hoc committee is of no legal relevance

Last week the ANC members of Parliament adopted a “report” that “exonerates” President Jacob Zuma of all wrongdoing in the R250 million Nkandla scandal. This is not unexpected. ANC MP’s need to protect the President in order to retain their jobs and to have any chance of promotion in future. It is politically required of them. But Nkandla is not (only) about politics. It is also about facts and the law. And legally the adoption of the “report” by ANC MP’s is of little significance.

The only surprising thing about the fact that the ANC MP’s in the National Assembly “exonerated” President Jacob Zuma of all wrongdoing for “accidentally” being enriched through government funded renovations of his private home near Nkandla, is that anyone was surprised.

President Zuma heads the ANC and is arguably (bar the Secretary General of the ANC perhaps) the most powerful person in the governing party. He has a decisive say in who is appointed as Cabinet Ministers and as Premiers. He has direct or indirect influence on who appears on ANC election lists.

He has extensive knowledge – through control of the intelligence services – of the shenanigans of those MP’s whose private lives or financial affairs may not be above board. And like the members of most political parties, ANC MP’s act as a collective in terms of decisions taken by the leadership, headed by President Zuma.

It would therefore have been political madness for ANC MP’s to endorse the findings of the Public Protector’s Report on Nkandla which found that President Zuma’s:

failure 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.

Section 96 of the Constitution states that Members of the Cabinet – including the President – have a constitutional duty to act in accordance with a code of ethics and may not “use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person”. In other words the Public Protector found that by failing to act when he had a constitutional and legal duty to do so, the President breached the Constitution and the Code of Ethics.

The Public Protector’s Report continued to direct President Jacob Zuma to do the following to rectify the unethical and unconstitutional omission:

  • Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW 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.
  • Pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.
  • Reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused.
  • Report to the National Assembly on his comments and actions on this report within 14 days. (This needed to be done because the Executive Members Ethics Act required it.)

These steps were not directed at Parliament but at the President. Because of the separation of powers doctrine, which holds that the legislature and the executive exercise different powers and functions, the central duties and powers of the head of the executive (the President) cannot be delegated to Parliament.

To do so would be to breach the separation of powers. Similarly the central duties and powers of the legislature cannot be delegated to the President. This was made clear by the constitutional Court in their judgment in Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others.

The renovations at the Nkandla home were done by members of the executive, headed by the President. Parliament did not renovate President Zuma’s house. This is because Parliament does not and may not fulfil an executive function. It cannot direct a building project or make decisions on whether to build a swimming pool or landscaped garden for the President to protect him from the danger of not having a swimming pool to cool down in and the danger of getting depressed by having to look at an ugly garden. Only members of the executive can do that.

It is for that reason that the Public Protector directed the President, the Minister of Police and the Director General of the Department of Public Works, and other members of the executive to take remedial action to rectify the wrongdoing committed during the Nkandla renovations.

The remedial action was not directed at the legislature. In fact the Public Protector, correctly, did not instruct the National Assembly to do anything – although she left open the possibility that it could hold the executive politically accountable for the unjustified enrichment of the President. This is because the members of the executive cannot delegate its powers to correct mistakes and to deal with unlawful expenditure to the legislature, as that would be impermissible in terms of the separation of powers doctrine.

Just as the President cannot delegate a decision on whether to declare war or whether to join BRICS to members of Parliament, he cannot delegate a decision of what to do with the Nkandla Report to Parliament.

This does not mean that the National Assembly has no power to deal with a breach of the Executive Members Ethics Act, as it has the power to hold the members of the executive accountable for such breaches as part of the system of checks and balances that is built into our Constitution.

In terms of the Executive Members Ethics Act the President must report a finding of any breach of the Ethics Code to the National Assembly. In theory this means that the National Assembly can follow up on any findings made by the Public Protector against a member of the executive and, in an extreme case, can pass a vote of no confidence in the Cabinet or in the President to have them removed.

But as the Cape High Court recently found in the judgment in which it clarified the powers of the Public Protector, Parliament would seldom be an effective mechanism through which the findings and remedial action of the Public Protector would be enforced.

In that judgment, dealing with the failure of the Minister of Communications and the SABC Board to deal rationally with the findings and remedial action imposed by the Public Protector, the Minister had argued that the best way to deal with any non-compliance of the Public Protector’s Report would be to refer the matter to the National Assembly.

The Minister argued that a request for intervention to the National Assembly or a relevant Portfolio Committee would have been an adequate remedy to deal with any alleged failure of the executive and the SABC Board to implement the remedial action imposed by the Public Protector.

The High Court dismissed this argument and found that the Minister was “mistaken”.

The facts of this very case show that the constitutional and statutory provisions upon which they rely are inadequate to ensure that the Public Protector is not undermined. Furthermore, a request for intervention to the National Assembly or its Portfolio Committee is not a legal remedy which grants similar protection as an interdict.

In other words, the High Court found that it would not be effective to rely on the National Assembly to deal with the implementation of the remedial action imposed by the Public Protector. This is obviously correct, because in the National Assembly political (and not legal) considerations will almost always determine the manner in which the National Assembly deals with the matter.

It is highly unlikely that the members of a majority party in any legislature will act in a manner that embarrasses their leader. It is even more unlikely that they will censure the leader or remove him or her from office by passing a motion of no confidence in him or her.

This is not a comment on (or criticism of) a specific political party, but an observation about the political reality within which the various legislatures operate in South Africa.

It is just as unlikely that the ANC members in the National Assembly will pass a vote of no confidence in President Jacob Zuma than it is that the DA members in the Western Cape Provincial Legislature would pass a vote of no confidence in Premier Helen Zille. It ain’t gonna happen – no matter how disgruntled some ANC MPs may be about President Zuma’s spendthrift ways or how upset some DA MPs may be about Premier Zille’s bullying and haughtiness.

This means that the National Assembly “Report” that “exonerates” President Zuma is of little legal relevance. In terms of the High Court judgment, it is the President who has a legal duty to consider the remedial action imposed on him by the Public Protector, to decide whether to implement the remedial action or not and if he decides not to implement any of the remedial action imposed on him to provide “cogent reasons” for not doing so.

When the President makes his decision, he must act rationally, having regard to his constitutional duty to assist and protect the independence and effectiveness of the Public Protector. He cannot ignore the remedial action and he cannot refuse to implement it merely because he has a different view from that of the Public Protector.

Being implicated in the matter means that the President is placed in an unappealing position: If he refuses to implement remedial steps it will be to his own financial and political benefit and it would thus be more difficult to convince a court that such a refusal was rational. The obvious conflict of interest that arises in the case, thus makes it very difficult for the President to be seen to act rationally – unless he implements all the remedial steps as imposed by the Public Protector.

Merely stating that the National Assembly has exonerated him, would also not be sufficient to convince a court that the President has acted rationally, because he is not constitutionally empowered to delegate the decision on whether to implement or not implement the remedial action to the National Assembly. If the President purports to do so he will be in breach of the separation of powers doctrine and the court will nullify his decision.

Of course, if the President provides “cogent reasons” for not implementing remedial steps imposed by the Public Protector and does so in a rational manner – given his constitutional duty to assist and protect the independence and effectiveness of the Public Protector – an eventual court challenge will exonerate him.

If not, the court will find that he had acted irrationally and thus unconstitutionally and will order him to implement the remedial action imposed by the Public Protector – as the High Court ordered the SABC to do in the recent judgment.

What is certain is that when the matter eventually reaches the court – as it almost certainly will – the decision by ANC members in the National Assembly to “exonerate” the President is not going to be of legal relevance.

What the High Court really said about the powers of the Public Protector

The Western Cape High Court this week provided the first authoritative interpretation of the nature of the powers of the Public Protector. Although the Constitutional Court will ultimately have to decide whether to endorse the approach taken by the High Court, I believe the High Court judgment got it more or less right. Here is why.

Because of the highly charged nature of the standoff between the Public Protector and the President about the latter’s failure adequately to consider and implement the remedial action imposed by her office regarding the state-funded renovations of President Jacob Zuma’s private home near Nkandla, a court judgment clarifying the powers of the Public Protector was always going to elicit much partisan comment and “spin” from those with a vested interest in the matter.

Those truly interested in the legal consequences of the judgment would do well to ignore the spin from members of the governing party and from the opposition about what the judgment actually means. Instead, it may be helpful to analyse the judgment in detail to ascertain what the court actually found. As is often the case with complex legal matters, the devil is in the detail.

In Democratic Alliance v SABC and Others Schippers J in the Western Cape High Court confirmed that the Public Protector is not a court of law and that the findings of her office and the remedial actions imposed by that office are hence not directly binding and enforceable.

The court found that because the office of the Public Protector is modelled on the institution of the Ombudsman (which is widely found in European democracies), the power of the office lies in its ability to investigate and make findings in a cost-effective manner and to ensure a change of behaviour of government officials and members of the executive through reasoned engagement.

Where government officials and members of the executive are persuaded through such reasoned engagement to change their behaviour, it will change the way they think and behave and this will have a lasting beneficial effect on the standard of governance in a country. (The court is silent on what may happen if – for political or personal financial reasons – organs of state refuse to engage in a reasoned manner with the findings and remedial action imposed by the Public Protector.)

The High Court did not consider the fact that South Africa – unlike most European democracies with an Ombudsman – is a constitutional democracy in which the Constitution (and not Parliament) is supreme. It also did not engage in detail in the wording of section 182 or the Public Protector Act to augment its detailed reasons why it held that the Public Protector’s findings are not binding.

It is of course possible (but it is far from certain) that the Constitutional Court will agree with the Public Protector that her office differs from that of the Ombudsman in the European countries referred to. I suspect it is for this reason that the Public Protector has indicated that she would like to have the decision of the High Court reviewed.

But I am not convinced that such a review will be successful and that the Constitutional Court will ultimately agree with the Public Protector. The reason for this is that the High Court judgment does provide for the effective implementation of the findings and remedial action imposed by the Public Protector, without giving her office the status of a court of law – which would be constitutionally problematic.

I say this because after finding that the remedial action imposed by the Public Protector does not have the status of a court order, the High Court proceeded to warn that:

the fact that the findings of and remedial action taken by the Public Protector are not binding does not mean that these findings and remedial action are mere recommendations, which an organ of state may accept or reject.

Consequently the findings of the Public Protector can never be ignored. Where an organ of state ignores the findings and remedial action by the Public Protector it would fail to comply with the constitutional duty to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness.

Disregarding the findings and remedial action subverts the Public Protectors powers under s 182 of the Constitution.

It would not always be sufficient, stated the court, to rely on Parliament and its committees to ensure that the findings and remedial action of the Public Protector are not ignored and that they are implemented. Because Parliament is a political body, it does not provide an effective legal remedy to ensure that the findings and remedial action of the Public Protector are properly dealt with.

Ultimately, the Public Protector or one of the complainants in a case may approach a court to ensure that the findings and remedial action are not ignored and, in appropriate cases, a court may order the relevant organ of state to implement the findings and the remedial action imposed by the Public Protector.

This is exactly what the High Court did in the case under discussion, ordering the SABC to institute disciplinary proceedings against the newly appointed COO of the SABC, Mr Hlaudi Motsoeneng, as was directed by the Public Protector, and further ordering his suspension while the disciplinary process takes its course.

To ensure that the office of the Public Protector “is not undermined”, the organ of state against whom findings are made or who is directed to take remedial action, must carefully consider the findings and remedial action imposed by the Public Protector.

If the organ of state decides to reject any of the findings and remedial action of the Public Protector, this will only be legally valid if the organ of state can produce “cogent reasons” for doing so. If it fails to provide such cogent reasons, its refusal to implement remedial action would be irrational and unconstitutional.

Here is the crux of the matter: the organ of state would not be acting rationally if it rejected the findings and the remedial action imposed by the Public Protector merely because it prefers its own view of the relevant facts or the remedial action above those findings and remedial action imposed by the Public Protector.

Even when the organ of state reached its own view (that differs from that of the Public Protector) on rational grounds, this would not make the rejection rational and lawful. This is so because if an organ of state could refuse to accept and implement the findings and remedial action of the Public Protector merely because it happened to hold a different view of the matter, it would subvert the powers of the Public Protector and would fail to act in a manner that ensured the effectiveness of that office.

What the organ of state would have to show is that (irrespective of whether it agreed with the findings and remedial action or not) there were other “cogent reasons” for rejecting the findings of the Public Protector, given the constitutional duty on the organ of state to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness.

The facts of the case under discussion illustrate this point and explain the “bite” hidden in the judgment regarding the obligations of those directed to take remedial action by the Public Protector. The Minister argued in her papers before the court that after the Public Protector made a finding that Mr Motsoeneng lied about his qualifications, the Minister looked at the evidence on which the Public Protector based her finding and came to a different conclusion.

Not only did the Minister not provide any reasons for coming to this decision, she also did not state that she had consider the other findings made against Mr Motsoeneng by the Public Protector. Neither did the SABC Board. The Minister and the Board in effect preferred their own view on Mr Motsoeneng above that of the view expressed by the Public Protector and did not bother to provide detailed reasons to show why this would be rational.

In the light of this failure to provide any reasons, let alone cogent reasons, for rejecting the findings and remedial actions imposed by the Public Protector regarding Mr Motsoeneng, the court found that the Minister’s and the SABC Board’s actions were “arbitrary and irrational and, consequently, constitutionally unlawful”.

The judgment mean that neither the President (nor Parliament) would be acting rationally if it decided that it preferred its own view of the facts and the appropriate remedial action regarding the Nkandla scandal above those imposed by the Public Protector and then rejected her findings and remedial action. Merely referring to the findings of the Ministerial Task Team would also not suffice.

This does not mean (in terms of the High Court judgment) the President could under no circumstances reject some of the findings and remedial action imposed by the Public Protector regarding the Nkandla matter. For example, where it would be impossible to implement the remedial action, it would be entirely rational for the President to refuse to implement the remedial action imposed by the Public Protector.

But given the fact that the President has a constitutional duty to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness, it would not be sufficient for the President to say he had a different view from the Public Protector regarding her findings and remedial action about the Nkandla matter. If the President ignores some or all of the findings and remedial action by the Public Protector and does not provide cogent legal reasons for this (apart from having formed a different view about the matter), he would be acting irrationally and would be in breach of the Constitution.

I would think that it is therefore in the interest of President Zuma to respond in more detail to the findings and remedial action imposed by the Public Protector, to indicate whether he accepts or rejects each and every one of the findings and remedial action and, if he rejects a finding or a remedial action, to provide cogent legal reasons for doing so. If he fails to do so he would be in breach of his constitutional obligations – at least as understood by the judgment discussed here.

Spy tapes: Still no reason to drop charges

Extracts from the so-called “spy tapes” (for some inexplicable reason the complete version has not yet been made available) reveal that former Scorpions head Leonard McCarthy is both an inveterate gossip and a staunch Thabo Mbeki supporter. What the tapes do not provide are credible legal reasons for dropping more than 700 criminal charges against President Jacob Zuma. Here is why.

The practice of appointing politicians or politically connected individuals to leadership positions in the National Prosecuting Authority (NPA) has seriously dented the credibility of the NPA. This politicisation of the NPA (as the spy tapes demonstrate, this process started long before the election of Jacob Zuma as president) has thus eroded its independence, its credibility and its effectiveness.

It is now inevitable that the National Director of Public Prosecutions (NDPP) (or the relevant Director of Public Prosecutions) who decides to charge or to drop charges against a politician or a politically connected businessman or woman will be accused of political motives.

When a politician is charged with any crime, I almost always suspect – rightly or wrongly – that said politician must have fallen out with the faction aligned to the president. (In the case of Julius Malema, he fell out with the faction aligned to the president and was subsequently kicked out of the party.) When serious accusations of criminality are made against a politician or businessman or woman and he or she is not charged or charges against him or her are dropped, I almost always suspect – again, rightly or wrongly – that this must be because of political interference in the NPA.

This does not mean that all allegations of corruption or fraud levelled at a politician or a politically connected businessman or woman holds water. Neither does it mean that those politicians and politically connected individuals who are charged have not acted in contravention of the law and that they should not be convicted and imprisoned for corruption. But sadly, this is not how the public discourse operates. Partly because of the politicisation of the NPA, some unscrupulous (but guilty) individuals use accusations of political conspiracy to avoid both criminal accountability and public censure.

In paranoid South Africa, the first thing a politician or controversial businessman or woman accused of a crime will do will be to allege that the allegations or criminal charges brought against him or her were due to a “political conspiracy”. Interestingly enough, few people fingered for corruption or other crimes ever claim that the evidence procured against them were fabricated. The logic seems to be that if political motives animated an investigation or a prosecution, it matters not that the accused committed the crimes. A political motive magically erases the corruption and the bribery and renders the accused innocent of all wrongdoing.

As the Supreme Court of Appeal (SCA) pointed out in 2009 in National Director of Public Prosecutions v Zuma when it overturned the judgment of Nicholson J (which itself was used as a pretext to remove then President Thabo Mbeki from office) “it is generally accepted that any prosecution authority ought to be free from executive or political control”, but “this was and is not necessarily the norm in Anglo-American countries”. In many countries the Attorney-General (called the NDPP in South Africa) is a political appointee – often at ministerial level – but is nevertheless required to act without any interference from the executive.

In South Africa, the position is not much different. The NPA is headed by a NDPP who is a political appointee (appointed by the president for a fixed term) and although section 179 of the Constitution states that national legislation must ensure that the NPA exercises its functions without fear, favour or prejudice, it also states that the Minister of Justice must exercise final responsibility over the NPA. The NDPP must also determine a prosecution policy (in terms of which decisions to charge or to drop charges against suspects should be made) with the concurrence of the Minister of Justice. As the SCA stated in the Zuma judgment:

These provisions may appear to conflict but, as the Namibian Supreme Court held in relation to comparable provisions in its Constitution, they are not incompatible. It held… that although 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.

This means that members of the prosecuting authority (including the politically appointed NDPP) must serve “impartially” and must exercise, carry out or perform their powers, duties and functions “in good faith and without fear, favour or prejudice” subject only to the Constitution and the law. At the same time the NDPP has a duty when so requested to keep the Minister of Justice informed about his or her work. However, the Minister has no power to interfere in prosecutorial decisions of the NDPP or any other member of the NPA.

Moreover, the NPA Act prohibits anyone (including the minister or the president) from interfering “improperly” with the NPA in the performance of its duties and functions. If the minister or anyone else were to interfere in prosecutorial decisions they would be committing a criminal offence.

As the SCA pointed out, the Constitution prohibits members of the NPA (including the NDPP) from taking account of political considerations when making prosecutorial decisions and also prohibits the Minister of Justice or any other member of the executive from interfering with a decision to prosecute or not to prosecute a suspect.

Where politicians or politically aligned individuals like Leonard McCarthy, Bulelani Ngcuka or Menzi Simelane are appointed to the leadership of the NPA, the temptation will be great to blur these lines and to take account of political considerations when making prosecutorial decisions. After Vusi Pikoli was fired for not taking into account political considerations when charging Jackie Selebi, NPA bosses (even those without strong political loyalties) must be acutely aware that their careers may be terminated if they stick to their principles and follow the Constitution. More worryingly, even where the lines between the political considerations and prosecutorial considerations are not blurred, the perception will inevitably arise that political interference occurred when a controversial prosecutorial decision is made.

But what happens if – as was the case with the prosecution of Jacob Zuma – some members of the NPA who may or may not have been involved in any decisions about his prosecution displayed a clear bias against him?

Recall that Mr Zuma (as he then was) and his lawyers never argued that there were no legal grounds to prosecute Zuma. Nor did they argue that all the evidence against him were fabricated or invented as part of a political conspiracy to frame him for corruption. Although they argued that they would try and block the admissibility of certain evidence (including the “encrypted fax” which demonstrated that a bribe was solicited on behalf of Zuma), Mr Zuma never argued that he had not received any money and that he had not done any favours for those from whom he received money. Instead he argued on procedural grounds that despite the evidence he could not receive a fair trial.

The SCA in its Zuma judgment was pretty clear that such arguments would seldom be of any legal relevance. The SCA pointed out that a prosecution could never be used solely to achieve an “ulterior purpose”. For example, prosecuting a person without any prospect of securing a conviction with the sole purpose of putting him out of business would be unacceptable. But where credible evidence existed that might secure a conviction and where the purpose of the prosecution was at least in part to secure such a conviction, this would not taint the prosecution.

A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same applies to prosecutions.

In the Zuma judgment (written before the so called spy tapes came to light) the SCA stated that there was no “ulterior purpose” in prosecuting Zuma and the prosecution could thus not be tainted. The spy tapes did not change this because as the SCA stated in rejecting Zuma’s argument that the prosecution must be set aside because it was tainted by a political motive:

In the absence of evidence that the prosecution of Mr Zuma was not intended to obtain a conviction the reliance on this line of authority is misplaced as was the focus on motive.

No one has ever argued that Zuma was prosecuted without the intention of securing a conviction. This means that the reasons offered by the then acting NDPP for dropping charges against Jacob Zuma do not seem to be in line with the law and may well be irrational. This conclusion is strengthened by the fact that, in terms of the Constitution, the prosecution policy must be observed in the prosecution process. When deciding to prosecute or not to prosecute or to drop charges against a suspect, the decision-maker must do so in compliance with the prosecution policy.

The prosecution policy lists a range of factors prosecutors should take into account when deciding whether or not to institute a prosecution: the strength of the state’s case, the admissibility of the state’s evidence, the credibility of the state’s witness, the strength of the defence’s case, and the extent to which the prosecution would be in the public interest. Curiously, the acting NDPP did not refer to this prosecution policy when he announced the dropping of the charges against Jacob Zuma. This means that the policy that – constitutionally – ought to have guided the decision to drop charges against President Zuma was not considered at all.

This means that it will be difficult for the NPA to convince a court that the dropping of charges against President Zuma was legally valid. Of course, whether too much time has now elapsed since the commission of the alleged crimes to allow for a fair trial is another question. But that would be a question for a court (and not the NPA) to decide.

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.