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
20 April 2022

On Bullshit: Why I wrongly thought the Public Protector’s complaint against justice Jafta was a hoax

When I first read an SABC News report that Public Protector Busisiwe Mkhwebane had lodged a complaint with the Judicial Service Commission (JSC) against (now retired) Constitutional Court justice Chris Jaftha, I thought it must be a hoax. Surely, I thought, not even the Public Protector is completely shameless. Even though her sizable pension might be at risk due to her imminent removal from office, she would not, I thought, lodge a complaint that would further accentuate her dishonesty and incompetence and raise questions about her ability to distinguish between fact and fantasy.

But here we are. The complaint is not a hoax. The Public Protector has indeed lodged a complaint against justice Jafta for breaching the Code of Judicial Conduct for (correctly) holding that the Public Protector relied on wording in the Executive Members Ethics Code that is not to be found in the legally binding Code, and then concluding that President Cyril Ramaphosa was guilty of breaching this (legally non-existent) version of the Code. She lodged the complaint despite previously admitting under oath that she had made a mistake and that the legally binding version of the Code is not the one she invented or (more politely put) relied on in various of her reports.

In my view, Ms Mkhwebane’s complaint is a classic example of bullshit – in the sense that philosopher Harry G. Frankfurt uses the term. It is widely known that in his book On Bullshit Frankfurt distinguishes between liars and bullshitters, arguing that while liars cared about the truth and attempted to hide it; bullshitters did not care if what they said were true or false, but only about whether the listener would be persuaded by their lies. In this case the target audience may not be the members of the Judicial Conduct Committee who will consider the complaint, but the members of the National Assembly who will decide on Mkwhebane’s impeachment.

I am aware that my interpretation might be overly generous, and that the Public Protector may be lying not to convince anyone at all, but merely to delay any inquiry about her fitness to hold office in order to protect her pension and other benefits. More troubling would be an interpretation that the Public Protector has no recollection of her previous admission that she relied on the wrong version of the Code, or made that admission believing it to be false, but I prefer the slightly less disturbing (and thus more generous) interpretation.

Here is why I say so.

  1. The facts

For reasons that are not clear, a previous version of the Ministerial Handbook included a wrong (and legally non-binding and thus irrelevant) version of the Executive Members Ethics Code. In that version, section 2.3 of the Code states that members of the Executive may not “deliberately or inadvertently mislead the President, or the Premier or, as the case may be; the legislature.”

The correct version of the Code states that members of the Executive may not “wilfully” mislead the legislature. Relying on the wrong version of the Code allowed the Public Protector to make adverse findings against Minister Pravin Gordhan and against President Ramaphosa despite the fact that they did not have the intension to mislead the legislature.

When granting an interim interdict against the implementation of the Public Protector’s Pravin Gordhan Report, the High Court pointed out that the Public Protector relied on the wrong wording of the Code. In response, Ms Mkhwebane lambasted the presiding judge and accused her of “deliberately” omitting the words “inadvertently mislead” from the actual Code. Her lawyers later unconditionally withdrew the accusation and offered an unreserved public apology to the wrongly maligned judge.

Both the High Court and the Constitutional Court later lambasted Mkhwebane for again relying on the wrong wording of the Code in her report on the CR17 campaign funds. The Constitutional Court judgment was penned by justice Chris Jafta, who dissented in the judgment sending Jacob Zuma to prison and later penned a lamentable dissent in support of Mr Zuma’s rescission application. After the Court declined to consider Ms Mkhwebane’s bizarre rescission application in the case, she lodged an even more bizarre and futile complaint against Jafta with the JSC.

There are several reasons why this application does not pass the bullshit test. I provide only a few of these below.

  1. The JSC Conduct Committee is prohibited from hearing the complaint

Section 15(2)(c) of the Judicial Service Commission Act states that complaints against judges “must be dismissed” if it “is solely related to the merits of a judgment or order”. As Ms Mkhwebane’s complaint deals with the merits of the judgment, it will therefore be dismissed out of hand.

There is little effort in the complaint to address this seemingly insurmountable problem, apart from complaining that Jafta J “intentionally sought to prejudice me”, and that he was “impartial” (sic) and used “harsh language”. (The fact that the Public Protector could not be bothered to proofread her complaint – or pay somebody else to do so – and thus complained about Jafta J being “impartial”, tells its own sad but devastatingly humiliating  story about the Public Protector’s competence.)

  1. The Public Protector does not know (or claims not to know) that the Executive Ethics Code is only legally binding if it is gazetted after consultation with Parliament

Section 2(1) of the Executive Members Ethics Act requires the President to publish a Code of Ethics. But it imposes two legal requirements for the Code to have any legal effect. First, the President must  consult  with Parliament about the Code before it is published. Second, the President must publish the Code “by proclamation in the Gazette”. This was done in 2000 when the legally binding Code was gazetted by proclamation no 41 of 28  July 2000:  Executive Ethics Code in Government Gazette No. 21399. This is the legally binding version of the Code relied on by the Constitutional Court. No other version of the Code has ever been gazetted and there is no evidence that Parliament was consulted about any other Code.

The Public Protector appears undeterred by the wording of the Code she relied on has no legal standing, claiming that the legally binding version of the Code was replaced by another version introduced by President Thabo Mbeki on 7 February 2007. She notes this version was  published in the Ministerial Handbook after being approved by the cabinet. She does not claim that the Code was gazetted or that Parliament was consulted before it was gazetted, thus (perhaps without realising) admitting that the version she relied on, is of no legal force and effect. (Whether she does not know that approval by the Cabinet is not the same as consultation with Parliament as these are two separate bodies within the system of separation of powers is not clear.)

Ms Mkhwebane further claims that the Constitutional Court had previously referred to the Ministerial Handbook in a footnote in another judgment and that this meant that she was “legally required, in accordance with the stare decisis doctrine to apply” the new Code. (The footnote did not quote the offending wording but merely referred to the Handbook where this wording appeared.)

It is difficult to explain to non-lawyers why this is a troubling proposition, but let me try. First, the stare decisis doctrine holds that courts are bound by the ratio (reasons) of the decision of a higher or larger court on its own level in the court hierarchy, but not to every single word and footnote in judgments of such a court. For example, that part of a judgment where a court provides reasons for its decision that a contract is invalid will create binding precedent. A footnote in that judgment referring to a textbook on contract law will however not turn the entire textbook into binding precedent.

Second, a footnote in a Constitutional Court judgment cannot override legal obligations imposed by legislation, and can therefore not rewrite section 2(1) of the Executive Members Ethics Act which requires consultation with Parliament and gazetting of a new Code as preconditions for the adoption of a legally valid Code. (An order of the Constitutional Court could, of course, have this effect, but no such order is to be found in any court judgment in South Africa.)

The argument advanced by the Public Protector is thus only slightly less absurd than someone claiming that Bafana Bafana had won the Soccer World Cup in 1996, because a FIFA Report contained a footnote citing a document that mixed up the Africa Cup of Nations and the World Cup. And then, when that person is told that South Africa had not in fact won the Soccer World Cup, the person doubling down by referring to the footnote as “proof” that South Africa did indeed won the Soccer World Cup, and accusing those who refuse to go along with their lie of the most egregious dishonesty and “patent impartiality”. Would this be sad or funny? Perhaps. Would it be profoundly dishonest or shockingly ignorant. Certainly.

(For the record, in 1996 South Africa beat Tunisia 2-0 to lift the African Cup of Nations for the first and only time, but has never progressed past the first round in the Soccer World Cup tournament.)

  1. The Public Protector conceded under oath that her version of the Code was the wrong one

The Public Protector admitted on 14 November 2019 in an affidavit to the High Court in the very case she now complains about, that the 2000 version of the Code was the correct and binding version of the Code, stating as follows:

I admit that the correct version of the Code appears at paragraph 5.1.9 of the Report which provides that a member may not wilfully mislead the Legislature. I admit that in certain sections of the Report reference is made to a different version of the Code which provides that a member may not deliberately or inadvertently mislead the Legislature.

The Public Protector also pointed out that elsewhere in her Report she cites the correct text, but argued in her answering affidavit that insofar as she erroneously misstated paragraph 2.3(a) of the Code, her error was immaterial. But on 16 November 2019 – two days after the admission mentioned above – the Public Protector submitted another affidavit in a different case (relating to the review of her report on Pravin Gordhan) in which she completely contradicted her 14 November admission by accusing another judge of “deliberately omitting” the words in the Code she had two days previously admitted never formed part of the Code.

In the event that she is prosecuted for perjury for advancing this false claim under oath, a criminal court will have to determine whether the Public Protector made this false claim dishonestly or merely because of a lack of an inability to distinguish between fact and fantasy. I leave such an assessment for the relevant court.

  1. The Public Protector did not challenge the High Court findings that she had quoted the wrong Code before the Constitutional Court

In her founding affidavit to the Constitutional Court in the present case, the Public Protector did not challenge the High Court finding that she had relied on the non-existent version of the Code in her report. As she had conceded under oath that she did rely on the wrong Code, this is not surprising, but it remains telling.

The High Court had partly based its decision to grant a personal cost order against the Public Protector on the fact that she had failed to explain her error about the wording in the Code, concluding that her “conduct in this regard goes further than simply having reference to two different versions of that Code” and noting that her submission showed “a flawed conceptual grasp of the issues with which she was dealing”.

But even more telling is the fact that in the principal submissions made by her lawyers to the Constitutional Court in the case, they admit that the correct version of the Code is the one referring to wilfulness (see paragraph 56). There is no mention in their submission of the this error and thus no attempt to challenge it. Again, this is not surprising as she had conceded under oath in an affidavit submitted to the High Court that she had made a mistake.

Yet, in her complaint to the JSC the Public Protector now argues that Jafta J acted in breach of the Code of Judicial Conduct by accepting her own admission under oath that she had erred, and by relying on the correct wording of the Code – something her own lawyers also did in their written submissions to the Constitutional Court. The mendacity of the Public Protector in this matter can therefore not be overstated.

  1. Conclusion

I believe I have made out a strong case that the Public Protector’s complaint against justice Jafta is a textbook case of bullshit, as it shows a complete disregard for the truth. As she has admitted previously under oath that she is wrong about the Code, and as her lawyers in the very case she is now complaining about conceded the point as well, she must surely know that her complaint is based on an obvious lie. If this is so, she must also know that the JSC Conduct Committee will be aware of this and will dismiss the complaint, but must believe that her target audience might believe her false claims.

Alternatively, and much worse, she may be beyond bullshit and may not care whether her claims are true or false, or may be incapable of making that distinction. Mark Twain famously said: “If you tell the truth, you don’t have to remember anything”. To this we can now add: “If you don’t believe there is any difference between facts and fiction, you don’t have to remember anything either.

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