Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
22 July 2019

Mkhwebane: Constitutional Court destroys her credibility, but this is no guarantee that she will be removed from office

The Constitutional Court judgment confirming the personal punitive cost order against Public Protector, Busisiwe Mkhwebane, should make it impossible for her to continue in her job. But because her tenure as Public Protector has become highly politicised, and because her removal will be fiercely resisted by the Zuma/Magashule/Malema faction, it is impossible to predict whether the National Assembly (NA) will remove her from office in accordance with section 194 of the Constitution.

On Monday South Africa’s Constitutional Court dismissed an appealof Public Protector, Busisiwe Mkhwebane, against a High Court judgment that awarded punitive cost against her in her personal capacity.

In normal circumstances, it would not be unusual for a court to overturn a decision by an independent body like the Public Protector. While having your report reviewed and set aside by the court would obviously be embarrassing for the Public Protector, it would normally provide no justification to have the Public Protector removed from office.

But the behaviour of the Public Protector during the South African Reserve Bank investigation (and afterwards during the court review) was in no way “normal”. The mistakes, misinterpretations of the law, and misrepresentations made to the court were done in bad faith and in a fundamentally dishonest manner.

It is exactly to punish the Public Protector for failing to meet “the standards expected of a Public Protector in light of her institutional competence” that the personal and punitive cost order was granted. As justices Khampepe and Theron (for the majority of the Constitutional Court) explained:

personal costs orders constitute an essential, constitutionally infused mechanism to ensure that the Public Protector acts in good faith and in accordance with the law and the Constitution. The imposition of a personal costs order on a public official, like the Public Protector, whose bad faith or grossly negligent conduct falls short of what is required, vindicates the Constitution.

It is only in the most exceptional circumstances, when a litigant has acted in a way that is truly beyond the pale, that personal cost orders are granted. As the majority explained:

Over the years, courts have awarded costs on an attorney and client scale to mark their disapproval of fraudulent, dishonest or mala fides (bad faith) conduct; vexatious conduct; and conduct that amounts to an abuse of the process of court…. The punitive costs mechanism exists to counteract reprehensible behaviour on the part of a litigant he principle that costs on an attorney and client scale are awarded when a court wishes to mark its disapproval of the conduct of a litigant… A punitive costs order is justified where the conduct concerned is ‘extraordinary’ and worthy of a court’s rebuke.

It is impossible in an article like this to highlight all the incidences where the Constitutional Court confirmed the adverse findings made by the High Court regarding Mkhwebane’s competence and honesty. There is simply not enough space to do so here. Moreover, as the Constitutional Court judgment confirms the findings against Mkhwebane made in the High Court judgment, the two judgments should be read together to understand the full impact of the court judgments on Mkhwebane’s credibility.

Luckily, the Constitutional Court summarises the findings of the two courts in the following two passages. First, the Constitutional Court summarises the High Court judgment as holding that:

the Public Protector had acted in bad faith; did not fully understand her constitutional duty to be impartial and perform her functions without fear, favour or prejudice; had failed to produce a full and complete record of the proceeding…; and had failed to fulfil her obligation to be frank and candid when dealing with the court.

A failure to be frank and candid is judicial speak for lying, for being a liar, for acting in a dishonest manner, and for misleading the court. Later the Constitutional Court revisits the question of Mkhwebane’s lack of honesty when it summarises its own views on the disaster:

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous ‘misstatements’, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report.

One of the most telling aspects of the judgment deals with the Public Protector’s actions after it came to light that she had secretly met with the Presidency and with the State Security Agency.

On the latter, the Constitutional Court remarks at some point that the “Public Protector’s explanation of the meeting with the State Security Agency is not only woefully late but also unintelligible”. A few paragraphs later, after providing the Public Protector’s explanation, the majority’s exasperation with the Public Protector’s version of events shines through when the court says about one such explanation: “With due respect to the Public Protector, this makes no sense”.

On the secret meetings with the Presidency, the Constitutional Court is also scathing. During the litigation the Public Protector provided three different explanations for this failure, but none of the explanation appears to have been truthful, leading the Constitutional Court to conclude that: “despite three successive explanations for the … meeting with the Presidency, the Public Protector still has not come clean and frankly explained why the meeting was held.”

The Court rejected the claim that these were merely “innocent” mistakes. But even if they were “innocent’ mistakes the disturbing part of it is that they formed part of an entire “basket of ‘mistakes’”.  Instead, the court held that the Public Protector “has not been candid about the meetings she had with the Presidency and the State Security Agency before she finalised the report” the personal punishing cost order was therefore warranted “because she acted in bad faith and in a grossly unreasonable manner”.

The Constitutional Court judgment is so devastating exactly because it contains a binding and final judicial pronouncement that the Public Protector is dishonest and also incompetent. The incompetence to investigate in a professional, efficient and impartial manner is summarised in the following passage:

The Public Protector’s entire model of investigation was flawed. She was not honest about her engagement during the investigation. In addition, she failed to engage with the parties directly affected by her new remedial action before she published her final report. This type of conduct falls far short of the high standards required of her office.

What is to be done? It is clear that the Constitutional Court judgment has destroyed the Public Protector’s credibility. Even in cases where the Public Protector acts in an honest and impartial manner, doubts about the veracity of a report will remain because of the reasonable apprehension of bias and incompetence created by the Constitutional Court judgment.

Many people in the Public Protector’s position would have resigned in an attempt to protect the office of the Public Protector against the inevitable lack of legitimacy and credibility arising from this judgment. Some might also have resigned to try and save face. But if the Public Protector chooses to stay on, it will fall to the NA to remove her from office.

Two problems arise here. First, there is a possibility that the existing rules of the NA to remove the Public Protector from office are not adequate and may contain an unconstitutional gap. In the second EFFjudgment the Constitutional Court held that the failure by the NA to make rules regulating the removal of a President through impeachment constitutes a violation of section 89 of the Constitution and is invalid.

The impeachment provision in section 89 is not dissimilar from the section 194(1) of the Constitution which provides for the removal of the Public Protector from office. This section states that:

(1)  The Public Protector, the Auditor-General or a member of a Commission established by this Chapter may be removed from office only on – (a)  the ground of misconduct, incapacity or incompetence; (b)  a finding to that effect by a committee of the National Assembly; and (c)  the adoption by the Assembly of a resolution calling for that person’s removal from office.

In the second EFF judgment the Court held that the rules required a special procedure to determine the factual question of whether any of the grounds for removal are present. Similarly, the rules may have to provide for a special procedure to determine whether the Public Protector is guilty of misconduct, incapacity or incompetence. If this is correct, no removal would be possible until the rules are changed accordingly.

Given the Constitutional Court judgment, any credible factual inquiry will find that the Public Protector is incompetent and is guilty of misconduct. But that would not be the end of the matter as it is far from clear that such a finding will move the required two-thirds of the members of the NA to support a motion for her removal.

While the first inquiry is supposed to be an objective and non-political process, the vote in the NA is a political vote. There is nothing that prevents more than one third of the members of the NA to vote against removal of the Public Protector despitethe fact that she has been found guilty of incompetence and misconduct.

If the Public Protector does not resign and if members of the NA decline to remove her from office, the Public Protector will limp on like a badly wounded soldier. She will make regular public statements believed by few, write reports trusted by even fewer, and impose remedial action that will, predictably, be challenged in the courts while a group of people will continue to loudly sing her praises despite the fact that she is dishonest and incompetent (or perhaps because of it).

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