Quote of the week

In today’s India, as in many other places, power and money define the context. Those who enjoy social and economic privileges, and can summon powerful political influence, play by different rules. Vast quantities of unregulated capital let loose by the neoliberal economy slosh around to twist the machinery of laws and administration. An army of fixers and middlemen operate at every level to distort and corrupt the everyday experience of democracy, turning it into “a feast of vultures”.

Gyan Prakash
Emergency Chronicles: Indira Gandhi and Democracy's Turning Point
12 July 2019

Public Protector v SARS part II: How the report found that the absence of evidence provides proof of wrongdoing

Earlier this week Minister Pravin Gordhan filed papers requesting the High Court to grant an urgent interdict to prevent the implementation of the remedial action imposed in the Public Protector’s most recent report – until such time as the court had reviewed and set aside the Public Protector’s report. Minister Gordhan’s papers are aimed at both a political and a legal audience and therefore accuse the Public Protector of bias and suggest that her most recent report is part of a “fight back” campaign by state capture beneficiaries. I prefer to stick to the relevant facts and to analyse the correctness of the legal arguments contained in the report, which I continue to do in this second (and mercifully last) instalment on the matter.

On Tuesday I wrote in an article on the Public Protector’s report that I had run out of space and could therefore not address all aspects of the Public Protector’s report on the establishment of the SARS investigative unit and other related matters. I also suggested that further reflection was required to consider whether some of the other findings in the report – including the finding that Minister Gordhan had deliberately misled Parliament – complied with the principle of legality. In what follows I delve into aspects of the report not covered in my previous article and evaluate its factual and legal findings.

Before I do so, it is important to raise one question about the papers lodged by Minister Gordhan. Apart from relying on the principle of legality for the review, paragraph 29 of the Founding Affidavit also relies on the provisions of the Promotion of Administrative Justice Act (PAJA) as grounds for reviewing the report. This is odd as the Supreme Court of Appeal (SCA) held last year in Minister of Home Affairs and Another v Public Protector of the Republic of South Africa that reports of the Public Protector are not subject to review in terms of PAJA, but can only be reviewed in terms of the principle of legality.

It would be surprising if Minister Gordhan’s lawyers are not aware of this SCA decision. I can only assume they are aware of this judgment but are hoping eventually to have the decisions by the SCA in the Home Affairs case overturned by the Constitutional Court, which would require them to raise the point from the outset. It will be interesting to see what legal arguments they advanced on this point before the court.

But let us turn to other aspects of the report which I had not previously dealt with. First, what about the finding that the Public Protector had “deliberately” misled Parliament? I suggested in passing that the finding is probably wrong but may not be irrational and hence unlawful. But in making this assessment I had overlooked a pivotal fact.

The Public Protector had found that Minister Gordhan had “deliberately” misled Parliament in contravention of section 2.3(a) of the Executive Members Ethics Code, not because of what he said, but because of what he had not said. It is common cause that Minister Gordhan had failed in his answer to Parliament to mention a meeting where one of the Gupta brothers was present.

Minister Gordhan’s defence was that he had forgotten about this meeting (and he maintains that to this day he has no recollection of it), and that he was only made aware of the meeting by his Chief of Staff, Mr Dondo Mogajane sometime after he had provided the answer to Parliament. The Public Protector rejected this explanation because it “did not seem” like a bona fide mistake. As the Guptas were notorious, anyone would have remembered meeting them. For this reason, the Public Protector found that Minister Gordhan had deliberately misled Parliament.

On the face of it, this finding may seem a bit harsh, but obviously not irrational. After all, it would not be the first time that a Minister lied to Parliament and then concocted a story to explain the “mistake”. One would be tempted to conclude that in this matter you either believe Minister Gordhan’s explanation (if you believe he is honest) or you don’t (if you are convinced that he is dishonest).

But on reflection, this logic does not hold up. This is because there was a very obvious way to test whether Minister Gordhan’s excuse was true or not. The Public Protector only had to interview Mr Mogajane as he was in a position either to confirm Minister Gordhan’s version or to expose it as a lie. But for inexplicable reasons the Public Protector did not interview Mr Mogajane. The report is silent on the matter and provides no reasons for failing to interview Mr Mogajane.

I would rather not speculate about why the Public Protector failed to interview the pivotal witness in this matter. The Public Protector will hopefully provide an explanation in her responding court papers. However, whatever the explanation might be, this failure to interview Mr Mogajane raises serious questions about the rationality of the Public Protector’s finding that Minister Gordhan had deliberately lied to parliament.

By far the most bizarre aspect of the Public Protector’s report relates to the finding that SARS had failed to follow correct procurement procedures when allegedly procuring intelligence equipment for the investigative unit. This part of the report reads like the trials and tribulations endured by Joseph K. in Frans Kafka’s The Trial.

The Public Protector concedes in her report that there is no direct evidence that the equipment was procured by SARS. She notes that SARS had failed to provide her office with documents relating to the alleged procurement of equipment. She also notes that those involved denied that any equipment was procured at all. Despite the absence of evidence, or rather because of the absence of evidence, she reaches the following conclusion:

It is extremely unlikely that a unit carrying out investigations on behalf of SARS would not procure equipment necessary for the fulfilment of its duties and functions. It is unclear why SARS and/or its former employees would keep the procurement such a guarded secret. Without proper explanation, I can only infer that the proper procurement processes were not adhered to. The existence of the unit is a non-disputable fact and therefore the buying of the equipment is an obvious consequence of that… The failure by SARS and the denial by the former officials of the existence and purchasing of the equipment by SARS is a clear indication that such equipment was utilised for activities falling outside the SARS investigative mandate.

No evidence is provided to back up this conclusion. Instead, the Public Protector concludes that the absence of proof that equipment was procured and denials by those implicated that such equipment was procured, provide proof not only that the equipment was procured, but also that it was used for an unlawful purpose.

The “reasoning” is so obviously irrational that it is impossible to imagine that any competent and impartial investigator would ever have come to the same conclusion as the Public Protector did on this matter. This finding must therefore surely be unlawful and will be set aside.

The Public Protector was also asked to investigate whether Mr Ivan Pillay was appointed to the position of Deputy SARS Commissioner and later as SARS Commissioner without the requisite qualifications. Instead of making a finding on this, the Public Protector ruled that the process followed to appoint him did “not comply with the values of fairness, transparency and accountability in public service”.

As there is an absence of evidence as well as reasoned argument in this part of the report (as elsewhere) it is not easy to assess the rationality of the findings. It is also unclear to what extent the Public Protector possesses the specialised knowledge of SARS and of Human resource practices to be able to evaluate the desired process of appointment chosen by SARS. In any event, I find it impossible to assess the rationality of the finding and the reasoning used to get to it, because there is simply not enough information in the report to make an informed assessment.

A last matter that must raise eyebrows is the remedial action imposed on the Commissioner of the South African Police Service, ordering him to investigate “the criminal conduct of Messrs Gordhan, Pillay…. for violation of section 209 of the Constitution and section 3 of the National Strategic Intelligence Act.” Section 209 of the Constitution does not create a criminal offence. Neither does section 3 of the National Strategic Intelligence Act.

The Public Protector has therefore unlawfully ordered the police to investigate breaches of two legal provisions that do not create criminal offences. The order is manifestly irrational and will therefore be set aside by the courts.

Given the questions raised here and in my previous article about the Public Protector’s SARS report, it must be welcomed that Minister Gordhan has approached the courts to have the report reviewed and set aside. It is also to be welcomed that the Public Protector has indicated that she will oppose the application.

This means that the High Court (and ultimately the Constitutional Court) will give definitive answers about the veracity of the Public Protector’s report – with potentially far-reaching consequences for either Pravin Gordhan or Busisiwe Mkhwebane.

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