Response to the legal claims made by the Public Protector’s office

The Public Protector’s office took issue with some of my legal arguments, in which I criticised her handling of the “preliminary investigation” of a complaint laid in 2016 against minister Pravin Gordhan. I will ignore the emotional political rhetoric in the response – which is not in keeping with the dignity and impartiality required of the office of the Public Protector – and try to respond to some of the claims made in the article. I do so happily, as I welcome the opportunity to engage in reasoned debate on issues of legal principle and legal interpretation.

Claim 1: “De Vos goes further to allege bizarrely that the Public Protector Act does not impose a legal duty on Minister Gordhan to respond to such requests by the Public Protector”. 

Answer: This claim is incorrect. My article – following the Public Protector Act – distinguishes between a request by the Public Protector to answer questions and provide documents (to which no legal duty attaches) and a subpoena (which – with certain exceptions – requires the subpoenaed person to answer questions and provide documents requested). The first situation is guided by section 7(4)(b) of the Act. This section states:

The Public Protector or any person duly authorised thereto by him or her may request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on a matter being or to be investigated.

This section permits the Public Protector to request certain categories of persons to assist her by providing information to her office. A request is an act of asking politely or formally for something. In it’s ordinary meaning, a request can be denied. To use an obvious example: You have a right to request that somebody marry you, but the other person does not have a duty to agree.

This view is bolstered by a contextual or purposive interpretation of the Act (see below), as the Act clearly distinguishes requests, on the one hand, and an direction (via a subpoena) on the other – attaching severe legal consequences to ignoring the latter without just cause, but not to ignoring the former. Usually the Public Protector will first request an individual to provide evidence and/or documents. If the person refuses and an investigation has commenced, the Public Protector can issue a subpoena and direct the person to appear, to testify and to provide relevant documents in terms of sections 7(4)(a) and 7(5) of the Act if there is no reasonable prospect of gaining co-operation in another manner (see below).

Section 11(3) of the Act makes clear that any person who, “without just cause, refuses or fails to comply with a direction or request under section 7(4)(a) of this Act or refuses to answer any question put to him or her under that section or gives to such question an answer which to his or her knowledge is false, or refuses to take the oath or to make an affirmation at the request of the Public Protector in terms of section 7(6), shall be guilty of an offence.”

This section only applies to a case where the Public Protector has subpoenaed a witness in terms of section 7(4)(a) and not to a situation where a mere request was made in terms of section 7(4)(b). In any event, the section makes clear that a person subpoenaed has a right to refuse to comply with a subpoena if that person has “just cause” to do so.

This means that where a subpoena is issued in bad faith, with an ulterior purpose, or in a manner that abuses the power to subpoena; or where it implicates some other rights such a freedom of the media or the right against self-incrimination, a court may well find that a person had a “just cause” to refuse to comply with a subpoena.

Subpoenas may also be set aside by a court. For example, in a slightly different context in Bernstein v Bester the Constitutional Court held that:

The use of subpoenas to require witnesses to attend courts, to produce documents and where necessary to give evidence is essential to the functioning of the court system. It is no doubt possible for the rule governing the issuing of subpoenas to be misused. The courts have the power to set aside subpoenas which have been issued for an improper purpose, or which are vexatious in other respects.

Claim 2: “The allegation by De Vos that the Public Protector has no power to subpoena any person during the preliminary stage of an investigation therefore has no legal basis and is devoid of any truth, because, a ‘preliminary investigation’ is clearly an “investigation”.

Answer: This is the highwater mark of the Public Protector’s argument. Stripped of its emotional language, the argument is that a literal interpretation of the Act would lead one to conclude that a subpoena can be issued during a preliminary investigation.

I disagree with this interpretation because I support the approach to legal interpretation – adopted by South Africa’s Constitutional Court – that legislation should be interpreted purposely (thus within its context) and – if possible – to give effect to the fundamental values in the Constitution. The literal interpretation of legalislation was an approach that did hold sway during the apartheid era, but our courts have since ditched this approach to legal interpretation.

In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others Ngcobo J (as he then was) stated:

Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points in relation to the application of this principle. The first is that ‘the context’, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and within limits, its background.

In Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma and Another v National Director of Public Prosecutions and Others the Constitutional Court further stated that one should interpret legislation, so far as its language will allow, so as to promote the spirit, purport and objects of the Bill of Rights.

The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution. . . . [J]udicial officers must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section. . . . It follows that where a legislative provision is reasonably capable of a meaning that places it within constitutional bounds, it should be preserved. Only if this is not possible should one resort to [a declaration of unconstitutionality and an appropriate remedy].

Following these principles, I argue that the provisions of the Public Protector Act are reasonably capable of an interpretation that safeguards the rights of those who are subpoenaed by the Public Protector, by allowing for the subpoena as a last resort and only after a decision was made by the Public Protector (after a preliminary investigation) to conduct a full investigation.

We know that the subpoena powers are extraordinary coercive powers and because of this – as the Constitutional Court held in President of the Republic of South Africa and Others v South African Rugby Football Union and Others – “are generally reserved for courts”. This means that where the power is granted to bodies other than courts, these powers should be interpreted restrictively.

The coercive and invasive nature of this power of the Public Protector is confirmed by section 7(6) of the Act which states that the Public Protector “may require any person appearing as a witness before him or her under subsection (4) to give evidence on oath or after having made an affirmation”. The Act does not prohibit the testimony acquired in this coercive manner from being used in a criminal prosecution against the witness, although (as we have seen) the witness has a right not to answer questions under duress if this will incriminate him or her.

It is also because of the danger of abuse that section 7(8) of the Act states that a person coerced by a subpoena to answer questions in terms of section 7(4) “may be assisted at such examination by an advocate or an attorney and shall be entitled to peruse such of the documents or records…  as are reasonably necessary to refresh his or her memory.” It is also for this reason that section 7(5) of the Act states that a subpoena must contain “particulars of the matter in connection with which the person subpoenaed is required to appear before the Public Protector”.

For the same reason the Constitutional Court held in the criminal law context relating to subpoenas issued for searches and seizures (in Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma and Another v National Director of Public Prosecutions and Others) that such subpoenas should only be used where:

there is an appreciable risk, to be judged objectively, that the state will not be able to obtain the evidence by following a less invasive route. This is not dissimilar to the approach proposed by the majority in the Supreme Court of Appeal which concluded that section 29(5)(c) requires the state to show that the material sought ‘cannot be expected in the ordinary course to be produced voluntarily.

Given these principles, my argument is briefly as follows. During a preliminary investigation no decision has been taken to investigate a matter. The preliminary investigation is exactly aimed at deciding whether there is a case to be answered and whether it should be pursued. During this phase it is not possible for the Public Protector to inform a person with any degree of precision (if at all) what is being investigated (as no decision has been taken to investigate anything). The person may well be left in the dark as to why she has been subpoenaed and this will be potentially extremely disadvantageous to the witness, who may expose herself to criminal prosecution for making fasle statements.

The witness is also unliklely to be able to establish whether he or she runs the risk of incriminating themselves and whether there is “just cause” to refuse to honour the subpoena. There is a grave danger that subpoenas issued during a preliminary investigation will be over-broad (see Tulip Diamonds FZE v Minister for Justice and Constitutional Development and Others on over-broad subpoenas) as the Public Protector will not be in a position to tell the person subpoenaed what exactly is being investigated and what evidence this investigation is based on, and this will infringe on the rights of the individual protected in the Bill of Rights.

A constitutionally compliant and purposive interpretation of the Act therefore requires us to read the Act contextually and as allowing a subpoena only to be issued as a last resort and only once a decision has been made that an actual investigation is to be conducted. In my view, the purpose of the subpoena power is to allow the Public Protector to force witnesses – especially those implicated in wrongdoing – to answer question once the Public Protector has decided that a full investigation should be conducted.

Claim 3: “Another concern is that De Vos still relies on the judgments (wrong precedents) in South African Reserve Bank v Public Protector & others, wherein Murphy J concluded that the Promotion of Administrative Justice Act (PAJA) applied to reviews of remedial action ordered by the Public Protector.”

Answer: This claim is false. My article does not refer to the quoted case. Nor does it advance – either directly or indirectly – an argument that PAJA applies to reviews of remedial action ordered by the Public Protector. It is unclear why this obviously false claim was included in the response.

The only reference to a review of decisions taken by the Public Protector in my article occurs in the last paragraph and reads: “I have no idea… whether a court will review and set aside any such findings”. It is common cause that the remedial action of the Public Protector can be reviewed by our courts under the principle of legality. If the office of the Public Protector’s response was intended to suggest that it cannot be reviewed at all, this claim would be false.

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