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
12 September 2017

Public Protector: Could Reserve Bank Affidavit Hasten Her End?

The revelations contained in the South African Reserve Bank’s (SARB) supplementary affidavit raises uncomfortable questions about the current Public Protector Advocate Busisiwe Mkhwebane’s fitness to hold office. At best, it raises questions about the Public Protector’s competence and knowledge of the law, and, at worst, it raises questions about her independence and impartiality. If the revelations (and the interpretations SARB placed on them) turn out to be true, there would be clear grounds for her removal from office. But for political reasons this is unlikely to happen in the short to medium term.

On 17 July this year I wrote that one should think long and hard before calling for the removal of the Public Protector from office. The guarantee of her security of tenure (for a non-renewable term of seven years) is an important safeguard of the independence of the office of the Public Protector. There should therefore be convincing evidence of “misconduct, incapacity or incompetence” on the part of the Public Protector before steps are taken to remove her from office.

Some of the revelations contained in the SARB affidavit may turn out to provide such evidence. For the purposes of this article, it is important to explain two of the relevant revelations contained in the affidavit.

First, the Public Protector had a secret meeting with the Presidency’s legal advisers shortly before she finalised her report on the “lifeboat” granted to Bankorp (later bought by Absa) to discuss her report. She did not have similar meetings with other parties affected by the change of direction that her investigation took – although she did meet with a Holocaust denier for his advice.

The Public Protector has also failed to provide transcripts of these meetings (which she is legally required to have handed over to SARB – if they exist of course). This is odd, as the Public Protector always records and transcribes meetings that form part of an investigation, and of the writing of a report.

There are good reasons why the secret meeting with the Presidency raises alarm bells about the Public Protector.

She failed to give all the parties an equal right of reply to her amended findings, thus treating the President more favourably than the other institutions implicated in the report. This appears to show bias or favouritism towards the President.

But there is more. The President was at the time engaged in a momentous struggle with Pravin Gordhan and the Treasury. The SARB reports to Treasury, and its leadership was viewed as being very close to Pravin Gordhan. Moreover, President Zuma’s friends (and rumoured benefactors, the Gupta brothers) have been exploiting the valid distrust and hatred of exploitative banks and other financial institutions (banks are almost always the bad guys, and with good reason), to create an alternative narrative to draw attention away from their smelly business practices.

The findings of the Public Protector against the SARB and against Absa provided excellent support for those who wished to draw attention away from the Gupta state capture project and towards other unsavoury people or institutions. The report (co-incidently or not) bolstered the narrative advanced by the Guptas. It is therefore not unreasonable to wonder whether President Zuma used the influence he might have over the Public Protector to exploit the SARB’s “vulnerabilities” with the aim of assisting his friends (and perhaps, benefactors) the Guptas in their struggle against the banks (who, for once – but far too late – did the right thing and closed the Gupta bank accounts).

But furthermore, the documents also reveal that the Public Protector met with the State Security Agency after deciding to target SARB in her report. At this meeting the question “how are they [SARB] vulnerable?” was raised. If the Public Protector was worried about the potential fall-out from her (illegal) remedial action which ordered Parliament to amend the Constitution to change SARB’s terms of reference, she would have met with the SARB leadership. But strangely she did not meet with the experts from the SARB. Instead she met with the State Security Agency, whose members has, as far as this is possible to know, no specialised expertise in issues affecting central banks. (As it turned out, the Public Protector also seems to have a tenuous grasp on the subject.)

In the absence of a credible explanation for these meetings (and for its secrecy), the most plausible inference to be drawn is that the Public Protector met with the State Security Agency to discuss the SARB’s vulnerabilities with a view to target that vulnerability to weaken the Gordhan faction of the government.

We await a full response from the Public Protector. If the response does not fully address the concerns raised by the affidavit, one would think the National Assembly (NA) would be forced to consider removing the Public Protector from office, something that is provided for in section 194 of the Constitution. This section states that the Public Protector may only be removed from office “on the ground of misconduct, incapacity or incompetence”.

The removal can only occur after a factual finding by a relevant committee of the National Assembly (NA) that the Public Protector is indeed guilty of misconduct, or suffers from incapacity, or is incompetent. The NA can then adopt a resolution calling for that person’s removal from office, but the resolution must be supported by at least two thirds of the members of the NA to pass. Once this resolution is passed, the President must (he has no discretion in the matter) remove the Public Protector from office.

Some readers might think that the revelations contained in the affidavit are not that serious and that it does not provide any evidence that the Public Protector may be guilty of misconduct, suffers from incapacity or is incompetent. This is true in the sense that (theoretically) there is still a possibility that the Public Protector could show that there was nothing wrong with her misleading the public about meeting with the legal advisers of the Presidency shortly before finalising the report. She might also manage to explain away what appears at first blush to be a damning entry in the “minutes” of the meeting with the State Security Agency.

The reason why these revelations appear to be particularly incriminating is that the Public Protector is (as I noted in July when I cautioned against hasty action against the Public Protector) an independent institution that must act in an impartial manner. It’s independence and impartiality depends, in part, on the integrity of those who head it. Where a perception takes hold that the person who heads the office of the Public Protector is not honest, lacks integrity or is biased, the Public Protector will lose credibility and legitimacy and will, over time, become an empty, ineffective, shell.

If that perception is not created by corrupt business elites and the politicians in their pockets (who would do almost anything to discredit a corruption fighting body threatening their wealth – exhibit A: Scorpions), but by the actions of the Public Protector herself, even people who are not overly suspicious and cynical would start to wonder about the incumbent’s fitness to hold office.

In S and Others v Van Rooyen and Others (General Council of the Bar of South Africa Intervening) (a judgment dealing with the independence of the judiciary) the Constitutional Court confirmed that an independent and impartial official will not be biased. In law a person would be viewed as biased if his or her actions lead to a reasonable apprehension that the person is biased.

The Court then continued:

When considering the issue of appearances or perceptions, attention must be paid to the fact that the test is an objective one.  Canadian courts have held in testing for a lack of impartiality ‘the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information.  In the words of the Court of Appeal . . . that test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.’

So, if a judge visits President Zuma a few days before the judge hands down a judgment which will be unfavourable to the EFF, and discusses the content of the judgment he is writing with the President (we all know President Zuma has a hate-hate relationship with the EFF leader), it is more than likely that the judgment would be overturned because of the judge’s bias.

We will only be able to determine “objectively” whether the revelations demonstrate that the Public Protector is not independent nor impartial, but in fact biased, after she responds fully to all the revelations. (Not to some, but to ALL revelations.) However, it is not clear what facts could be offered to convince a reasonable person that the failure of the Public Protector to inform the public of her meeting with the Presidency – despite having a legal duty to do so – was an honest mistake and not an outright and deliberate lie. But who knows: sometimes what at first looks like dishonesty is nothing more than inexcusable incompetence.)

There are good reasons why the Public Protector can only be removed if he or she is guilty of “misconduct, incapacity or incompetence”.

Let us have a look at some of them.

The office of the Public Protector is – from a constitutional perspective – a strange beast (as is the other Chapter 9 institutions). It’s independence and impartiality is guaranteed in the Constitution and (as the Constitutional Court confirmed in the judgment of Independent Electoral Commission v Langeberg Municipality) it is thus not part of the executive (or, as it is colloquially known, not part of the national government).

Neither is it part of the judiciary. Yet, it shares some of the same characteristics exhibited by the judiciary. Its independence and impartiality is guaranteed by the Constitution. It is not part of the legislative or executive branches of government (I would argue it is part of a fourth branch of government, the National Prosecuting Authority might be the fifth branch). And although the office of the Public Protector investigates matters within its jurisdiction (unlike courts), it can make binding findings and issue binding remedies in the form of remedial action – just like a court.

The Nkandla judgment confirmed that the Public Protector has enormous powers: her office can make binding decisions that could potentially have a disastrous impact on the lives of individuals and on the stability of state institutions. It is therefore of particular importance that a person who wields such enormous power should do so prudently, fairly, and impartially. She should act in a manner that demonstrates profound respect for the independence and impartiality of her office and should be seen to do be doing so by the public.

Two important consequences flow from this.

First, we should all be circumspect when we discuss the actions of the Public Protector and when we criticise her actions. Don’t get me wrong. She is not immune from criticism (even harsh criticism) – just like no judge is immune from being criticised for her actions or judgments.

The public therefore has every right to engage with the revelations contained in the SARB affidavit and to advance arguments about what impact these revelations might or should have on her fitness to hold office. But what is best avoided are wild generalisations and personal attacks unrelated to the actions taken by the person being criticised. (Many sexists love to criticise the appearance of women in leadership positions as an undermining tactic.)

Second, if reasonable people eventually conclude after looking at all the available evidence that the Public Protector is biased, and furthermore that this bias resulted in her colluding with the Presidency and the State Security Agency to advance factional political interests, the only viable option would be to remove her from office. But this is not likely to happen in the short to medium term.

This is because she can only be removed from office if at least two thirds of the members of the NA support her removal. This means political considerations, and not the facts, might determine her fate. If it turns out that the Public Protector is not independent and impartial and that she is guilty of misconduct or incompetence, most MPs might nevertheless decide to protect her for reasons that has little to do with principle and everything to do with naked political self-interest.

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