An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
It has been more than 90 days since the Public Protector issued her report in which she made damning findings against the Police Commissioner and the Minister of Public Works regarding their involvement in securing a new lease for Police headquarters in Pretoria. At the time, the Minister stated that she would respond to the report after studying it. To date the Minister has failed to respond. Her silence is deafening.
This week the Public Protector, Thuli Madonsela, described the failure of government departments to comply with her decisions as “a recipe for impunity”. And with impunity there would be “no real accountability or incentive to change”, said Madonsela. The Public Protector is a constitutional body empowered 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.
As I read the Constitution and the empowering legislation, the recommendations of the Public Protector are not legally binding in the same manner as an order issues by a court of law. This is appropriate as only an independent court should be empowered to make findings that are binding and should be able to make orders for Ministers and other state officials to comply with the law. This does not mean that the findings and recommendations of the Public Protector should not be dealt with speedily and appropriately.
Organs of state, through legislative and other measures, must assist and protect the Public Protector “to ensure the independence, impartiality, dignity and effectiveness” of these institutions. A systematic failure on the part of the executive and of state officials to implement the recommendations of the Public Protector could fatally undermine the effectiveness of that institution and would contravene the letter and spirit of the Constitution.
In the case of the Public Protector’s report on the unlawful lease of new police headquarters in Pretoria, the executive has been at best tardy and at worst wilfully obstructionist. Cabinet appointed a committee to engage with the Public Protector on her findings and at a meeting with this committee it was agreed that the Public Works department would not go ahead with the implementation of the unlawful lease until the second inquiry into another dodgy police lease in Durban was completed. Yet, this agreement has not been honoured.
Three serious questions arise.
First, why has the Department of Public Works been so determined to honour this unlawful lease? As I noted before, serious questions must be asked about the manner in which the former Minister of Public Works was fired by President Jacob Zuma after the then Minister had cancelled the unlawful lease. Did any money change hands to secure the lease and if so did the money go to the governing party or to individuals in the governing party? If not, why on earth is the relevant parties not implementing the recommendations of the Public Protector?
Second, why has President Jacob Zuma not stepped in to ensure that the recommendations of the Public Protector are acted upon? The President was quick to fire the previous Minister of Public Works, yet he has not said a word about the damning findings against the current Minister and he has not shown any willingness to hold his Minister or the Police Commissioner to account for their respective roles in this scandal. Ultimately the buck stops with the President and if he fails to act on these findings, the perception will become more deeply embedded that he is not serious about dealing with maladministration and corruption in his government.
Surely President Zuma must either fire his Minister of Public Works or he must indicate what other action he has taken or intends taking against his Minister to deal with her part in this scandal. If he fails to do so, the perception will be created that our President is either not in control of his own government or that he is supporting the maladministration and alleged corruption in his administration. Given that serious allegations of corruption have previously been levelled against our President and given the fact that his former financial advisor has been convicted of bribing him, a failure to act will further undermine confidence in his leadership and his probity.
Third, the Public Protector is a body created to assist Parliament in holding the executive to account. Where the Public Protector issues a damning report against the Police Commissioner and the Minister of Public Works – as it has done in this case — the relevant Parliamentary Committees, who are constitutionally required to hold these individuals to account, should call these individuals to appear before them to explain themselves. Yet Parliament has been mum on the report and it has failed to do what the Constitution requires it to do.
The question must be asked why the relevant committees have been to scared to hold the Minister and the Police Commissioner to account? Are we seeing the kind of executive minded dereliction of duty which characterised the work of Scopa in the arms deal inquiry after the intervention of the office of then President Thabo Mbeki and his “enforcer”, Essop Pahad? Have ANC Parliamentarians been instructed by party leaders not to do their work? If so, why was such an instruction issued? If not, why are we paying the salaries of these public representatives?
This week, while visiting Egypt, news emerged that the former housing minister who served under ousted President Hosni Mubarak was sentenced to five years imprisonment over an illegal land deal. Earlier this month the former interior minister was also jailed for 12 years for money laundering and illegal profiteering. Journalists and political activists we spoke to while visiting Cairo emphasised that the partly concluded revolution in that country was sparked not only by a lack of freedom and real democracy, but also by the belief — now confirmed by these convictions — that the Mubarak regime was deeply corrupt.
Endemic corruption amongst President Mubarak and his cronies completely delegitimise the regime in Egypt and seriously hampered economic development. We all know that this helped to provide the impetus for the Tahrir Square revolution. Although Mubarak’s governing party had won a (admittedly deeply flawed and unfree) election last year with a landslide, people were so fed-up with the regime that they were prepared to risk their lives to regain their dignity and to save Egypt from the ruling kleptocracy. More than 800 people were killed by the regime during the revolution and activists insist that President Mubarak himself must be put on trial for the killing of these protestors as well as for his involvement in corruption.
When Moeletsi Mbeki warned earlier this year that South Africa will face its own Tunisia and Egypt style revolution against the ANC by 2020 because of maladministration and corruption, the ANC responded furiously. At the time ANC spokesperson Brian Sokutu said: “Our fledgling constitutional democracy, which continues to make inroads in redressing decades of apartheid , cannot be equated with tyranny or stagnation in our growing economy, as Moeletsi insinuates.”
This statement — while correctly noting that South Africa is a far more free and democratic country than Egypt was under Mubarak – would have been more credible if the ANC-led government had shown a more honest and sincere respect for our constitutional democracy and bodies like Parliament and the Public Protector, which our constitutional drafters created exactly to help us prevent the kind of situation that developed in Egypt.
It is in the long term interest of the ANC, its leaders and all citizens of this country that a perception does not take hold amongst a majority of people that the system is so rotten and riddled with nepotism and corruption that the only way to address it is to lead a peaceful popular revolution against the incumbent government and the governing party.
When the findings of the Public Protector are not respected and its recommendations not properly and speedily implemented by the government, the body created by our Constitution to guard against corruption and maladministration will become a “toothless tiger” (to use the words of former Chief Justice Ishmael Mahommed). In the short term this might be seen to be in the interest of those within the governing party who is profiting from the system. In the long term, it might well lead to the situation that Moeletsi Mbeki warned against.
Surely none of us want to wait until the situation becomes so bad that our courts are called upon to jail a former President and several of his Ministers for corruption? Because if we let this happen, we will lose decades in which the state will not act as effectively and speedily as it could to improve the material conditions of the majority of citizens, who have been deprived of their dignity and of basic economic opportunities by the former apartheid state.BACK TO TOP