Public Protector’s “legal” arguments may not be aimed at winning court cases, but at promoting political talking points

Last week Public Protector Busisiwe Mkhwebane suffered another legal defeat when a full bench of the Western Cape High Court dismissed her application for an interim interdict that would have prohibited the Speaker of the National Assembly from proceeding with the process to consider her removal from office. The outcome was to be expected, given the eccentricity of many of the legal (and not so legal) arguments advanced on her behalf. But maybe these arguments were never advanced to win a legal victory, but rather to promote political talking points.

You can read a court judgment in many distinct ways, or, put differently, you can look for many different things when reading such a judgment. You can read a court judgment like you read a detective novel: to find out what happened, and who the “good” guys and the “bad” guys are. (In some cases there are no “good” guys, and you  are stuck with the “bad” guys and the “even worse” guys.)

You can read a judgment as if it is an autobiographical fragment penned by the judge, with the aim of finding out something interesting or revealing about the judge who wrote it. In exceptional cases (because judgments seldom rise to the level of literature) you can take pleasure in the quality of the prose, the sly jokes slipped into the text or footnotes, or the manner in which the judge made the litigants come alive on the page.

I believe if you look for the right thing (or in the right way), even the most dreary and uninspiring judgments can come alive before your eyes. (I am aware that this is probably the most nerdish sentence I have ever written in this column.) The recent Western Cape High Court judgment in Public Protector v Speaker of the National Assembly and Others (written by Saldanha J, with Steyn J and Samela J concurring), may help to illustrate my point.

Now, as we all know, it would be foolish to read a high-profile politically tinged judgment involving the current Public Protector merely to find out who won the case – we already know from experience that the Public Protector is likely to have been on the losing side. (Of course, who the “bad guys” and the “even worse guys” are in a particular case may provide some intrigue). A more interesting way of looking at the judgment would be to ask why the Public Protector and her lawyers brought the case in the first place, and why they advanced the rather eccentric arguments they did.

So let us dive right in.

We know – from numerous High Court judgment and a Constitutional Court judgment – that the Public Protector is legally incompetent and dishonest (this is not an opinion, but a fact confirmed by various courts). But what if this case was not about the law at all, but rather about persuading more than a third of the members of the National Assembly (NA) not to support her impeachment, and providing political talking points for those supporting her? Thus, an attempt to move the debate from the legal to the political terrain, where the Public Protector appears to be more comfortable.

The decision to remove the Public Protector from office is ultimately taken by the NA (with a vote supported by at least two thirds of its members) and is ultimately a political decision – as the High Court noted. (This political decision can, however, only be taken once the existence of one or more of the grounds for removal have been established as a matter of fact.)  The Public Protector claimed in her court papers that there was little likelihood that two thirds of the NA would vote to remove her (this would be “miraculous”, she said). But this was obviously a bit of a fib as her removal depends on the outcome of factional battles within the ANC and for the moment, her critics seem to have the upper hand. Her application for an interdict could thus be read as having a political and not a legal purpose.

Some examples would suffice here.

First, the Public Protector claimed in her papers that she was acting “in the spirit of constructive engagement” and “co-operative governance” when lambasting the Speaker for the absence of impeachment rules. However, in Independent Electoral Commission v Langeberg Municipality the Constitutional Court held that chapter 9 institutions are not organs of state within the national sphere of government and are therefore not subject to the constitutional provisions of co-operative government when they are in fact independent from government. The claim is therefore a legal nonsense.

It may well be that the Public Protector and her lawyers were unaware of the Langeberg decision, but claiming that she was willing to subject herself to these provisions sent a signal that she was eager to work with the other branches of government – as long as they did not do anything to threaten her position. (Of course, it also signalled ignorance of the constitutional nature of the independence of chapter 9 institutions.)

Second, the Public Protector again raised the argument that the scathing judgments against her is of little relevance as her position differs little from that of judges who arrive at incorrect decisions which are routinely overturned on appeal. In this regard, she contended “that remarks of Judges are opinions of that Judge, therefore the Judges remarks on the applicant’s findings cannot be used to determine the competence and/or misconduct of the applicant.”

As any lawyer would know, this is not a tenable argument. The Public Protector is not a judge and fulfils a different function from a judge. She investigates complaints and writes reports, and when the report is taken on review, she becomes a litigant in the case. (Some of the most scathing criticism emanating from various courts relate to her dishonest conduct during litigation.) The various judgments also differ sharply from the usual appeal judgments overturning the decision of a lower court as such judgments seldom if ever make adverse findings about the honesty and competence of the lower court judge. Lastly, these judicial findings against her are not mere “opinions” – just like a finding by a trial court that X fired a gun at Y in a jealous rage is not an “opinion”, but a finding of fact.

As the High Court found, while the NA needed to make its own assessment on whether the Public Protector is incompetent or committed misconduct, these scathing judgments “nonetheless constituted crucial evidence of the complaints of misconduct and incompetence against” her. But, crucially for my argument, this is exactly the kind of talking point that the state capture aligned politicians and their supporters would use in her defence. The argument may be a legal nonsense, but it could be politically useful for her supporters who will not be keen to fight this battle on the basis of facts and law.

Third, the Public Protector complained that she would be subjected to double jeopardy (being tried twice for the same crime) if she were removed from office, because she had already been punished with a personal cost order by the Constitutional Court. (Interestingly, the same argument was advanced – without success – in defence of then SARS Commissioner, Tom Moyane, at the Nugent Commission.) This is another legal nonsense. As the High Court drily remarked: “Other than in the context of criminal proceedings there is certainly no principal of double jeopardy of general application as the applicant contends. She need look no further than then the very remedial action that she herself orders.”

But “double jeopardy” is a sexy sounding term that would be familiar to many members of the public from watching American courtroom dramas. It’s the kind of term that the Public Protector’s Twitter trolls (ignorant of the law or disinterested in the truth) will endlessly recycle (as many did during the Nugent hearings). It will not matter that the concept has no application in this kind of inquiry. What will matter is that it is a catchy phrase that could help to convince people who know nothing about the law that the Public Protector is being treated unfairly.

I could go on and on, but I am running out of space and would like to touch on one last aspect of the judgment that fascinates me. Large sections of the judgment consist of descriptions of the Public Protector’s legal and political arguments contained in her papers, including many quotes (provided without any comment) in which she attacks her perceived enemies in ever more baroque language. The meticulous but respectful recounting of these arguments in the judgment signals that the court took the arguments seriously and that it was willing to amplify them in the spirit of generosity and fairness. (The only minor but glaring misstep in the judgment is the misspelling of the surname of a justice of the Constitutional Court: it is Jafta J, not Japhta J.)

But perhaps inadvertently, the cumulative effect of these long passages is to diminish the standing of the Public Protector as an independent and impartial office-bearer. Relying heavily on her own words, the judgment paints a picture of someone who is quarrelsome, reckless and partisan. Perhaps this is because the affidavits were written in “what did appear to be unnecessary and at times intemperate language” (as the court politely described it). As a result, the contrast between the temperate and generous tone taken by Saldanah J, and the overheated political tone taken by the Public Protector is stark. It is like comparing and contrasting what Donald Trump has said about Covid-19 with what Dr Anthony Fauci has said about the same topic.

However, if, as I have argued above, the debate about the removal of the Public Protector from office will not be won or lost using legal arguments, the intemperate and even partisan language used by the Public Protector may not matter much. Or may matter for all the wrong reasons. Neither would the fact that she regularly advances legal arguments that are clearly untenable.

What may matter most is whether the Public Protector’s legally dubious but rhetorically attractive political arguments will gain traction among those sitting on the fence in the factional battle within the ANC. As the manner in which the NA dealt with the Nkandla saga depressingly illustrates, in such arguments the facts or the law are often trumped by the catchy but dubious political talking points of those who know little about the law or care less about the truth.

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