Last week Judge JNM Poswa delivered a damning judgment in the North Gauteng High Court in which he set aside a “report” (well, more like an excuse for a report, also called a “whitewash”) by the Public Protector into the so called Oilgate scandal. The judgment bends over backward to be “fair and balanced” and not to jump to conclusions about why the Public Protector failed so dismally to adhere to its mandate and to do its job as required by the Constitution and the law.
However, after reading the full judgment it is impossible not to be concerned by the behaviour of the Public Protector’s office in this case and not to wonder whether the author of the report, Public Protector head of special investigations Advocate Stoffel Fourie, acted in bad faith or whether he was “merely” incompetent and misguided when he failed to properly investigate complaints against the then Deputy President, the ANC, PetroSA and the Invume company whom the Mail & Guardian alleged at the time was a front company of the ANC.
Sadly, this saga further tarnishes the reputation of the Public Protector and his office. Even before this case was handed down, the Public Protector did not – to put it mildly – have a good reputation as a fearless watchdog and was widely perceived to lack the independence and courage to make findings that would embarrass well-connected individuals or politicians of the governing party.
To some extent this reputation was unfounded. The office of the Public Protector investigates over 20 000 complaints every year and has done excellent work, dealing with most of these complaints in a decisive and comprehensive manner. The media does not report on the vast majority of these cases, and has focused only on those high profile politically charged cases where the Public Protector has often failed to deal with the complaints in a credible and comprehensive manner.
The perception that the Public Protector was not as independent and fearless as required by the Constitution was fueled in part by the fact that Lawrence Muswhana was appointed as Public Protector in 2002 after serving as an ANC MP and as the Deputy Chairperson of the National Council of Provinces (NCOP). This appointment was clearly a mistake as it created the impression – rightly or wrongly – that the Public Protector was an ANC lackey who would do everything within his power to shield ANC politicians and the governing party from embarrasment.
Against this background the decision of the North Gauteng High Court is worrying indeed.
The judgment (which seems well-reasoned to me) is also significant because it confirms that public power conferred in terms of the Constitution or the law has to be exercised lawfully, rationally and in a manner consistent with the Constitution. The principle of legality requires that an official to exercise public power in accordance with the provisions of the law and the Constitution. Where an official misconstrues his or her powers or fails to adhere to the requirements set by the law or the Constitution for the exercise of those powers, the officials actions will be unlawful, regardless of whether it constitutes administrative action or not.
What is required is that the power had to be exercised in good faith and in a rational manner and thus should not be arbitrary or manifest a “naked preferences” that serves no legitimate purpose. The court found that the Public Protector in this case acted irrationally because he failed to summons any person to give evidence; failed to obtain the relevant documents; failed to to contact any of the relevant role players to hear their version of events and stated that most of the facts in the Mail & Guardian stories were incorrect without ever having investigated this!
The relevance of this judgment therefore extends beyond the present case as it confirms – contrary to what Justice Minister Jeff Radebe has alleged in the Sunday Times and again in The Thinker – that the decision by the NPA to drop charges against President Jacob Zuma can be reviewed and set aside if the head of the NPA misconstrued his powers, acted in bad faith or irrationally or failed to a adhere to the provisions of the Constitution.
If the Head of the NPA had dropped the charges without having regard to the prosecution policy – which he is constitutionally bound to do – he would have acted contrary to the principle of legality and a court would then have to declare the dropping of charges unlawful.
As the Acting Head of the NPA had failed to mention the prosecution policy when he gave reasons for his decision to drop the charges against Zuma, plagiarised a Hong Kong decision which was later overturned on appeal in justifying his decision and relied on as yet unpublished recordings that must have been illegally handed over and obtained by the legal team of President Zuma, it seems to me there is a very strong possibility that a court could find that the dropping of charges were unlawful.
But that is perhaps a debate for another day and another court.
Perhaps [ I haven’t read it } it can also point to the possibility of the Shaik medical parole/release being set aside.
Seems to me the ‘lack of independence’ in the offices of those that are to protect and uphold the Constitution and the law is to be blamed on the fact that the incumbents of the posts are firstly political appointments. They are appointed by the President (on advice of Parliament) or the Cabinet member responsible or Parliament itself; and, in a system where one effectively has a ‘one-party-state’ like in South Africa today, where the Executive act (or refuse to act) while dancing to the tune of the relevant political party that rules, one can barely speak of fearless independence amongst these people. (The removal of the NDPP and the see-saw-like decisionmaking procesesses under Mpshe Acting NDPP appear to bolster this feeling.) Perhaps the time has come that such people are appoited at the behest of an independent Commission, like the JSC, but where the Executive members do not have a free (prerogative) say in who is appointed.
Dream on Pierre, charges against Msholozi will never be reinstated whether you and the DA likes it or not!
Mdu, it is not about reinstating charges. It is about declaring unlawful the decision to drop the charges. I am sure a new decision will be taken – this time complying with the law – to have the charges dropped. Whether this is a good or bad thing is neither here nor there. But even if it is a good thing not to have a sitting President face criminal charges for taking money from a crook and then doing favours for that crook, it does not make the original decision by Mpshe lawful. In my opinion that decisions was in clear breach of the Constitution and hence invalid. I am sure with the right “encouragement” from the ANC, the government and National Intelligence the NPA could be “convinced” to let the whole thing go in a legally valid manner. Still, the original decision was not taken lawfully as it did not comply with the prosecution policy that is binding on the NPA.
I agree with Anonymouse, the problem lies in having politically alligned individuals appointed to these institutions that are supposed to be independent. The JSC example is also a bad one insofar as you have so many members from one political party who will, more often than not, all vote in a block regardless of what each one of them feels about a subject.
I think the solution would be to have a Body that will be constituted by 5 members, one each from each party represented in Parliament. If less parties in Parliament, the party with more representatives will have a first bite at the cherry to pick the next person, then the 2nd best represented party and so on…this Body would have to appoint all the people who are supposed to be independent, including the judges. I think that could work, with the necessary refinement of course by people more clever than me!!
Mzo – good input. Of course when I referred to the JSC, I did so rather tonue in the cheek – ‘like the JSC’ – mindful of the many political appointments on it, which makes it a ‘loaded’ body that is not necessarily independent in the true sense of the word. Your idea does not seem bad. However, I would like to see more statutory and constitutionally regulated ‘qualifications’ that the people eligible to be appointed to those posts should have, and more statutory and constitutional guidelines along which the incumbents should work to ensure democracy and protection of the Constitution and its values.
The root of political corruption is greed; patronage, otherwise known as cadre deployment produces the branches by which access, having been ill gotten, provides the tracks upon which those of criminal intent flow to and fro from the trough.
Political and bureaucratic corruption is spawned, indeed it is encouraged via patronage. Its not just money which is obtained through corruption, more importantly it is undeserved power, as it is this latter which harms us most.
Dictionary of American History
“PATRONAGE, POLITICAL, is often defined as public office awarded in payment for political support.”
Mzo I like that idea…given that just about every independent body in SA is in fact an extension, for the most part, of the ANC, it seems the safest way to go is to constitute independent bodies that, instead of pretending to be apolitical, are entirely political – but made up of equal numbers of people from different parties.
Of course, given alliances etc etc, this is still dicey, but one would also hope that the people sitting on those independent bodies would have qualifications (real ones) that indicate they are also competent to perform their tasks.
However, given the fact that the ANC already feels like it is losing control of the country, and with COASTU and the SACP eagerly waiting like the vultures they are to jump in and start formulating and promulgating policy (only in SA do non-polictical parties have that much potential clout), I doubt we’d see something like this. The Scorpions were truly independent, and we all know what happened to them when the ANC suddenly didn’t like them anymore.
Pardon my deviation from the topic.
All ye legal gurus I need to know
• Can the DA lay charges against the alleged corruption within the ANCYL with regards to its finances?
• Can they lay these charges at any police station?
• Isn’t this a matter for the NPA and/or Scorpions (whatever they are called these days) to handle?
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=138559&sn=Detail
Hi Dumisani
The answer is yes if we look at the act section 34 of the Prevention and Combating of Corrupt Activities Act 12 of 2004
1) Any person who holds a position of authority and who knows or ought
reasonably to have known or suspected that any other person has committed- 25
(a) an offence under Part 1, 2,3 or 4, or section 20 or 21 (in so far as it relates to
(6) the offence of theft, fraud, extortion, forgery or uttering a forged document,
involving an amount of RlOO 000 or more, must report such knowledge or suspicion or
cause such knowledge or suspicion to be reported to any police official. 30
any body, whether thats you, me or a company or a poltical party has information that holds authority, and who has evidence on corruption that has taken place has a duty to report the matter to the police. So yes the DA is legally bound to lay charges of this nature.
And yes can report or lay charges at any police station
however the problem with a political party brinigng evidence like this or laying charges like this against another political party gets scuffed off all to easily as being “political” utter rubbish actually
Prof., can you please write an article about double standards employed by some in our community when it comes to Prez Zuma’s appointments of his ANC cadres like the acknowledgment Gill Marcus got from particularly the DA and dissapproval Cele got also especially from the DA, could the approval and/ or dissapproval be raciallay motivated?
South Africa needs independent voices now more than ever before if our our freedoms and democracy have to survive the assaults by the current ANC and its allies.
Frank Talk – Steve Biko’s alias. Will you live up to it?
I think that the bad rep is unfortunate but they got it by their own doing. In the eyes of society and the world it is not the little cases that show that one is doing a good job but the ases where you are REALLY tested. The PP was tested, a few times, and has failed. What should be done about it?
On the issue of political appointees I think we are safe to say MOST of the positions in govt (or related spheres) are held by those who pander to the ANC’s wishes OR are part of the ANC. It only becomes a problem when people fail to do their jobs, as is often the case.
Thank you, Chris.
Prof. PdV wrote:
| The office of the Public
| Protector investigates over 20 000 complaints every year and has done
| excellent work, dealing with most of these complaints in a decisive
| and comprehensive manner. The media does not report on the vast
| majority of these cases, and has focused only on those high profile
| politically charged cases where the Public Protector has often failed
| to deal with the complaints in a credible and comprehensive manner.
=========
I find this very difficult to believe, because I had dealings with the
PP office about 5 years ago. If they were competently handling more than
mechanically routine tasks, you could clone them, and use the ‘franchise’
to fix all SA government departments from education, health to justice.
I don’t doubt that they have 20 000 filled in forms to indicate that
they’ve ‘handled’ the cases — like the SAP. Or like Mbeki handled
Zimbabwe.
Are there records of their work available for public scrutiny ?
I can say for a fact that WLD records are disasterous.
Also from my limited experience, the records that get into the
public domain, i.e. before they’re lost at WLD are sanatised.
Refute this and I’ll provide simple evidence !
Meanwhile lets see if *THIS* shows that your incompetent
and corrupt SA judicial system is fixable:———–
Email header to: “reform@justice.gov.za”
Date: Sun Jun 21 04:32:29 SAST 2009
Subject: Law Reform Commission submission.
South African Law Reform Commission, June 2009
your document:
http://salawreform.justice.gov.za/docs_gen/objects.htm
states:
> …
> * the removal of anomalies;
> …
> In short, the Commission is an advisory body whose aim is the
> renewal and improvement of the law of
> South Africa on a continuous basis.
> …
Accordingly, I report this observation which is clearly against the
spirit of the law and the intention of the legislators:-
At a Sheriff’s sale properties were bid up to multiples of the
market value; thereby driving away the genuine buyer/s.
After the bidding, and when the genuine buyer/s had left,
the sheriff/auctioneer announced that ‘there had been error/s
in the bidding for properties X and Y and that the sales would
consequently be “rectified”, and that re-bidding for the said
properties would take place after the other business had been
completed’.
Since the genuine competitive bidders had been removed by the
‘trick’, the statutory intention of an open pre-advertised
auction had been by-passed.
Clearly I must assume that the Sheriff is/was party to the scam.
Since this is the only such auction which I’ve ever attended,
a sample of one, gives a 100% indication, that such scams occur
regularly at South African Sheriff auctions.
This conclusion is strengthened by the fact that the rule/s
which allowed the scam which was disclosed in case: CCT74.03
has also been in place for decades.
In fact, while I was at the Sheriff’s office I heard one of
the Sheriff’s ’staff’ mention “op pas” in connection with
“die neuwe reel” [be careful about the new rule].
http://www.ghostdigest.co.za/code/../code/../code/A_525.html
> Having found section 66(1)(a) of the Magistrates’ Courts
> Act 32 of 1944 to be unconstitutional, the court orders
> that the section is to be read as though the words “a court,
> after consideration of all relevant circumstances, may order
> execution” appear before the words “against the immovable
> property of the party”.
It seem that only after sufficient pressure is applied,
preferably by someone wearing a black-cloak, can absurd
legislation, which has allowed injustice for decades, finally
be fixed. I have further, well documented, example/s of SA justice system’s inability to correct amply recorded serious errors.
To discourage the ’sweeping under the carpet’ of this – my report,
this post is going to Patricia de Lille [a confirmed fighter of SA's
corruption & injustice] and to the [international internet]
law-newsgroups circuit.
== Chris Glur. June 2009 ******@gmail.com
PS. this blog has problems with embedded email text ?