The WhatsApp, the Public Protector, and a reasonable apprehension of bias

Last week the Mail & Guardian reported that Public Protector Busisiwe Mkhwebane sent a WhatsApp message to Basani Baloyi, the former Chief Operations Officer of the Office of the Public Protector, in which she claimed she “worked with a few people to deal with the sabotage of the PG camp”. This message raises interesting questions about the exact nature of the constitutional requirement that the Public Protector must be impartial and must exercise her powers without fear, favour or prejudice.

Imagine for the sake of argument that Economic Freedom Fighters (EFF) leader Julius Malema is prosecuted for corruption. (If ignorance of the Constitution was a crime, I would have used Democratic Alliance (DA) MP Dean MacPherson as the example.) Now imagine a judge – sitting with two assessors – finds Malema guilty of corruption and sentence him to 15 years in prison.

Before the appeal can be heard a WhatsApp message, sent by the presiding judge to one of her assessors during the trial, emerges. Imagine that in the message the judge tells the assessor: “I worked with few people to deal with the sabotage of the Malema camp…. It is not about you but one has to play the chess.” Asked for comment, the office of the Chief Justice issues a statement on behalf of the judge which reads in part: “The text in question was sent at the time when Mr Malema was attacking the judge through the media. The text was therefore referring to countering that.”

In the scenario sketched out above (which mirrors what happened in the Public Protector’s investigation of Pravin Gordhan), Mr Malema and his supporters would – for once – have a point in accusing the judge of bias and declaring the trial a sham. This is because the WhatsApp message will have created the impression that the judge did not have an open and impartial mind about Mr Malema’s guilt or innocence when she presided over the trial. In fact, the WhatsApp would reveal that the judge was so upset by Mr Malema and his party (“camp”) that she secretly got third parties to help her “deal” with the attacks on her.

It would have suggested that the judge viewed Mr Malema and the EFF as enemies in an opposing political camp, as a group who needed to be “dealt with” with. The revelation of such a WhatsApp would have been a political gift for Mr Malema and a personal catastrophe for the judge.

But would the WhatsApp – as a matter of law, not of politics – have provided sufficient proof that the judge was not impartial and should therefore have recused herself from sitting in Mr Malema’s trial? In President of the Republic of South Africa and Others v South African Rugby Football Union and Others the Constitutional Court pointed out that section 165(2) of the Constitution requires courts to apply the law “impartially and without fear, favour or prejudice”. (Section 181(2) of the Constitution imposes a similar obligation on the Public Protector.)

The Constitutional Court held that a judge who sits in a case in which she or he is disqualified from sitting because, seen objectively, there exists a reasonable apprehension that such judge might be biased, acts in breach of the requirements of section 165(2) of the Constitution. Note that the test is not whether, in fact, there was bias on the part of the judge. Instead the test is whether a reasonable person would have a real apprehension that the judge was biased. The focus of the test is how the behaviour of the judge will influence a reasonable person’s view about his or her ability to be impartial in the case before him or her.

Despite the fact that actual bias need not be shown, the Court has cautioned that it would not easily find that there was such a reasonable apprehension of bias on the part of a judge, and quoted approvingly as follows:

… 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… [The] test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude’.

Our courts have held that it would not normally create a reasonable apprehension of bias if the judge is a mere acquaintance of one of the litigants, or if one of the lawyers in the case is a close family member of the judge. More would be required. But what is clear is that the judge is obliged not to do or say anything – either in public or in private – that would create the impression that he or she does not have an open mind about a case before him or her. As such, what is openly done and said in public will be less likely to raise an apprehension of bias, than that which was don behind closed doors or in secret.

Because perceptions are so important in these matters, judges will never respond in any way to criticism levelled at them during a trial, nor will they respond to public criticism of their judgments. Judges will definitely not say anything in public or in private to suggest that they see the litigants or accused before them as opponents who must be dealt with. Judges are therefore in a very different position from people like you and me: we are entitled to give our opinion, to criticise one or other of the parties in litigation and even to announce who we believe should win a court case long before it has concluded. A judge may not do any of this.

However, evidence that the judge had colluded with third parties to “deal” with the accused’s attacks on the judge, would almost certainly be sufficient for a finding that the judge did not have an open mind when she heard the case. I am pretty sure in my imaginary example, Mr Malema would have been able to convince another court that the High Court judge should have recused herself because her WhatsApp provided sufficient proof to create a reasonable apprehension of bias on the part of the judge.

If one agrees with Busisiwe Mkhwebane that the Public Protector should have the status of a judge and should generally be treated like a judge, this would mean that her WhatsApp to the former COO disqualified her from considering the Pravin Gordhan matter and issuing her report because it created a reasonable apprehension of bias on the part of Mkhwebane against Gordhan. This would amount to a ground to have the Public Protector’s Gordhan report reviewed and set aside.

But this is not the end of the matter as Mkhwebane is wrong when she claims that the Public Protector is akin to – and should therefore be treated in the same manner as – a judge. There are strong similarities between the Public Protector and judges – including that the Public Protector can also issue binding orders in the form of remedial action.

However, unlike a judge the Public Protector participates in the fact-finding process. She does not sit on the bench and wait for either the state (in criminal case) or the litigants (in civil cases) to present the evidence to the court. And, unlike a judge, she is one of the litigants when her reports are taken on review. It is therefore impossible to expect the same degree of impartiality from her than one would expect from a judge.

The Public Protector is in a difficult position because on the one hand, she is under a constitutional obligation to be impartial and to pursue every investigation with an open mind. On the other hand, she is obliged to be fearless and to try and get to the truth. In the process she might well have to engage with those she is investigating and may have to ask them difficult questions to try and establish whether they are being truthful.

A reasonable person would be aware of the unique role played by the Public Protector, would understand this differs from the role played by a judge, and would therefore not easily be persuaded that the Public Protector is biased just because of the way she interrogated witnesses or because of some other relatively inconsequential utterance made in public. Such a reasonable person will know that it is perfectly fine for an impartial finder of fact vigorously to probe the oral evidence provided by the subject of an investigation, and to be robust in trying to establish the truth.

Having said this, I suspect the WhatsApp message sent by the Public Protector may potentially cause the Public Protector some legal difficulties in the High Court review application brought by Pravin Gordhan. A court who lays eyes on the text may well be tempted to review and set aside the Public Protector’s findings and remedial action in the Gordhan report on the grounds of bias. Recall, the text reads:

COO, I worked with few people to deal with the sabotage of the PG [Pravin Gordhan] camp. The notice is almost ready for rogue [unit], will issue this week and report will also be issued in the manner I will determine. The notice for the president is also ready, will call him this week to discuss the notice. It is not about you but one has to play the chess.

What a reasonable person might ask is whether an impartial fact-finder like the Public Protector, someone who is required to keep an open mind about the person she is investigating, would have made such derogatory remarks about the person under investigation and would have blamed his “camp” for “sabotaging” her investigation. For me this raises an apprehension of bias on her part, but – who knows – my fear of bias on this score may not be found to be reasonable.

What I believe would truly alarm a reasonable person was the news that the person who was supposed to keep an open mind about the Gordhan investigation had actually secretly approached unnamed people to “deal” with Gordhan and his “camp”. This does not look like the actions of an impartial factfinder who has kept an open mind about the person she is investigating. This is the actions of a person who has made up her mind that the person she is investigating is a truly bad egg.

Besides, who are these unnamed people she worked with? Were they rogue journalists? Or were they perhaps the political leaders of a party supportive of the Public Protector? Did she ask these people to discredit Gordhan in the media? Something else?

A reasonable person would not know the answers to these questions. However, I suspect a reasonable person – even one who is keenly aware of the fact that the Public Protector is not a judge and performs a very different function than a judge does – might well worry after seeing this WhatsApp that the Public Protector did not have an open mind – was in fact biased – when she made the findings and imposed the remedial action that she did.

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