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.
Last week Judge JNM Poswa delivered a damning judgment in the North Gauteng High Court in which he set aside a “report” (well, more like an excuse for a report, also called a “whitewash”) by the Public Protector into the so called Oilgate scandal. The judgment bends over backward to be “fair and balanced” and not to jump to conclusions about why the Public Protector failed so dismally to adhere to its mandate and to do its job as required by the Constitution and the law.
However, after reading the full judgment it is impossible not to be concerned by the behaviour of the Public Protector’s office in this case and not to wonder whether the author of the report, Public Protector head of special investigations Advocate Stoffel Fourie, acted in bad faith or whether he was “merely” incompetent and misguided when he failed to properly investigate complaints against the then Deputy President, the ANC, PetroSA and the Invume company whom the Mail & Guardian alleged at the time was a front company of the ANC.
Sadly, this saga further tarnishes the reputation of the Public Protector and his office. Even before this case was handed down, the Public Protector did not – to put it mildly – have a good reputation as a fearless watchdog and was widely perceived to lack the independence and courage to make findings that would embarrass well-connected individuals or politicians of the governing party.
To some extent this reputation was unfounded. The office of the Public Protector investigates over 20 000 complaints every year and has done excellent work, dealing with most of these complaints in a decisive and comprehensive manner. The media does not report on the vast majority of these cases, and has focused only on those high profile politically charged cases where the Public Protector has often failed to deal with the complaints in a credible and comprehensive manner.
The perception that the Public Protector was not as independent and fearless as required by the Constitution was fueled in part by the fact that Lawrence Muswhana was appointed as Public Protector in 2002 after serving as an ANC MP and as the Deputy Chairperson of the National Council of Provinces (NCOP). This appointment was clearly a mistake as it created the impression – rightly or wrongly – that the Public Protector was an ANC lackey who would do everything within his power to shield ANC politicians and the governing party from embarrasment.
Against this background the decision of the North Gauteng High Court is worrying indeed.
The judgment (which seems well-reasoned to me) is also significant because it confirms that public power conferred in terms of the Constitution or the law has to be exercised lawfully, rationally and in a manner consistent with the Constitution. The principle of legality requires that an official to exercise public power in accordance with the provisions of the law and the Constitution. Where an official misconstrues his or her powers or fails to adhere to the requirements set by the law or the Constitution for the exercise of those powers, the officials actions will be unlawful, regardless of whether it constitutes administrative action or not.
What is required is that the power had to be exercised in good faith and in a rational manner and thus should not be arbitrary or manifest a “naked preferences” that serves no legitimate purpose. The court found that the Public Protector in this case acted irrationally because he failed to summons any person to give evidence; failed to obtain the relevant documents; failed to to contact any of the relevant role players to hear their version of events and stated that most of the facts in the Mail & Guardian stories were incorrect without ever having investigated this!
The relevance of this judgment therefore extends beyond the present case as it confirms – contrary to what Justice Minister Jeff Radebe has alleged in the Sunday Times and again in The Thinker – that the decision by the NPA to drop charges against President Jacob Zuma can be reviewed and set aside if the head of the NPA misconstrued his powers, acted in bad faith or irrationally or failed to a adhere to the provisions of the Constitution.
If the Head of the NPA had dropped the charges without having regard to the prosecution policy – which he is constitutionally bound to do – he would have acted contrary to the principle of legality and a court would then have to declare the dropping of charges unlawful.
As the Acting Head of the NPA had failed to mention the prosecution policy when he gave reasons for his decision to drop the charges against Zuma, plagiarised a Hong Kong decision which was later overturned on appeal in justifying his decision and relied on as yet unpublished recordings that must have been illegally handed over and obtained by the legal team of President Zuma, it seems to me there is a very strong possibility that a court could find that the dropping of charges were unlawful.
But that is perhaps a debate for another day and another court.BACK TO TOP