As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
It has now been more than two months since the Public Protector issued her report which contained damning findings against various officials and a politician about the manner in which the Department of Public Works and the Police dealt with a lease agreement in Durban with businessman Roux Shabangu.
After an investigation the Public Protector found that the procurement by the Department of Public Works of the lease “was not in accordance with a system that is cost effective and competitive, as is required by section 217 of the Constitution, the relevant provisions of the PFMA, Treasury Regulations and supply chain management rules and policies”. It this found that this “failure amounted to improper conduct and maladministration”.
It is important to note that the Public Protector is constitutionally and legally empowered to investigate maladministration and unlawful conduct relating to public funds, to make findings about such matters and to recommend remedial action. When the Public Protector does so, these findings do not constitute mere “allegations” — as alleged by Speaker of the National Assembly, Max Sisulu. Sisulu stated that the Public Protectors findings against Mahlangu-Nkabinde and Cele had no weight in law. “These are allegations by the Public Protector. The minister has not been found guilty by any court of law,” he said.
The Speaker was clearly confusing (or perhaps conflating) two distinct modes according to which legal processes lead to adverse findings being made against officials and politicians regarding maladministration and the wasting of taxpayers money. One such a process is where a person is criminally charges and is found to have committed a crime. The other is where the Public Protector has investigated a matter and has made findings that an official or a political has acted unlawfully (which may or may not include a prima facie finding that a criminal offence has been committed).
One may act unlawfully without committing a crime. If the law authorises a person to spend money only in a particular way and only for a particular purpose, that law may not deem it to be a criminal offence when the money is then spent unlawfully. The law is broken but no criminal offence is committed as the law might not provide for criminal sanction in cases of such unlawful action. Although the law criminalises corruption, official who spend money in a manner not authorised by the law might not be guilty of corruption as the unlawful spending might not have been done for a corrupt purpose (or the investigators might not have been able to uncover the corrupt purpose).
The drafters of the South African Constitution understood this very well. In order to protect ordinary citizens and to provide them with a cheap and easy manner to challenge maladministration or unlawful action on the part of officials or politicians, the Constitution created the office of the Public Protector. The Public Protector has the job of protecting us all — rich and poor — from the vagaries of officialdom and has the duty to investigate, make findings and order remedial action in cases where it would not be appropriate for the Police to get involved in investigating the unlawful action or maladministration that inevitably arise in any system of government.
The system can only work if the findings of the Public Protector are respected and acted upon. That is why section 181(3) of the Constitution explicitly states that: “Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions”. That is also why section 182 of the Constitution states that the Public Protector has the power “to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action”.
In terms of section 239 of the Constitution, organs of state would include the President and Minister of Public Works. However, it is unclear whether the President and the Minister has so far acted in a manner that is aimed at assisting and protecting the Public Protector to ensure its effectiveness. If they ignore the findings of the Public Protector, this failure in itself can be viewed as unlawful and a court could be approached to request it to order the implementation of the findings. Of course, if the President or the Minister believes that findings and recommendations made by the Public Protector are clearly wrong or cannot be implemented, they are free to approach the court to have the findings or recommendations reviewed and set aside. Absent such a move they have a duty to implement the findings.
This morning the Minister of Public Works, Gwen Mahlangu-Nkabinde told SAFM that she is not going to resign as there was no reason why she should resign. At first blush this might appear to constitute a further unlawful flouting of the recommendations of the Public Protector. However, at this point it might be helpful to recall that the Public Protector has made the following finding against the Minister of Public Works:
The conduct of the Minister of Public Works in relation to the procurement by the DPW for the SAPS referred to in this report and in respect of the investigation by the Public Protector failed to meet the requisite stewardship expected from her, including the use of public resources as envisaged by sections 195 and 217 of the Constitution and the Batho Pele Principles, and her obligation to cooperate with the investigation in terms of the Public Protector Act, and accordingly constituted improper conduct as envisaged by sections 181(3) and 182(1) of the Constitution.
The remedial action proposed by the Public Protector was phrased carefully to avoid any separation of powers concerns. Thus the Public Protector recommended that:
The President to consider taking action against the Minister of Public Works for her actions referred to in this report and the Report of the Public Protector on the procurement of the lease of the Middestad building… [and, inter alia that] the Minister of Public Works [should] report to the Cabinet on her actions in relation to the procurement of the leases of the Middestad and the Transnet buildings by the DPW and her failure to fully cooperate with the Public Protector in connection with the investigation thereof, within 60 days of the date of the issuing of this report.
The Public Protector did not order the President to fire the Minister and did not order the Minister to resign as this would have been inappropriate. Only the President has the power to appoint and fire members of his cabinet and it is up to the President to decide whether he wishes to fire a Minister or wishes to ask a Minister to resign. It is up to a Minister to fall on her sword if she believes that she has disgraced the government in which she was graciously asked to serve by the President. This is not a purely legal issue, but an ethical issue and an issue of open, accountable and democratic government.
It would be naive to think that a President would ask a Minister to resign or that a Minister would resign of her own accord, “merely” because this is the right thing to do in order to protect the government’s image and to prevent the perception from taking hold that the government condones maladministration and unlawful action. In democracies, Presidents or Prime Ministers usually fire Ministers and Ministers usually resign because of a public outcry. Where the public becomes outraged by the unlawful actions of a member of cabinet and it becomes clear that the credibility of the government is being damaged, a resignation usually follows.
The failure of the President to act against the Minister of Public Works and her failure to “do the right thing” and resign, will of course further erode trust in our government and in our belief that the government is serious about dealing with maladministration and unlawful behaviour. In the long term the authority of the government will be eroded.
I would therefore contend that it is not in the interest of the government and of the ruling party for the President not to take action against the Minister. Although there may not be immediate consequences for the President and the party he leads if no action is taken, in the longer term it will contribute to the creation of a perception that our government condones maladministration and unlawful action. And once that perception has firmly taken hold in the imagination of the electorate, it is difficult if not impossible to erase.
At present this might not seem problematic as there is as yet no credible opposition party to whom a majority of the traditional voters of the ANC would want to turn. But such a party will emerge at some point in our history and then the ANC will lose the election. When the ANC loses an election, some of us will remind the leaders of the party that it had squandered the trust of the South African electorate by not being seen to act decisively against maladministration and unlawful action by members of the Executive. Members of the ANC who take a long term view and wish to safeguard the image of the governing party would do well to place pressure on the leadership of the party to act on the recommendations of the Public Protector.
If I had been a member of the ANC NEC, I would have argued very persistently that it is in the interest of the ANC for the President to ask the Minister of Public Works to resign. If ANC NEC members fail to speak up, they would — in my opinion — deserve one day to sit in the opposition benches of Parliament where they would have time to reflect on the mistakes made while in government.BACK TO TOP