“The public protector must not only discover the truth, but must also inspire confidence that the truth has been discovered,” said the Supreme Court of Appeal (SCA) in its judgment on the matter between the Mail & Guardian and the protector.
And the court said that in its pursuit of the truth, the protector must not only investigate without fear, favour or prejudice, it must approach its sometimes daunting task with an open and inquiring mind.
These principles, which are at the heart of the public protector’s mandate, were so woefully lacking when former public protector advocate Lawrence Mushwana embarked on his investigation of the M&G‘s Oilgate exposé, that the SCA found that there was “in truth no investigation at all into the substance of the various complaints”.
The SCA had no difficulty in setting aside Mushwana’s report. The legal position now is that the original complaints made to the protector still stand and must be investigated.
Because of the difficulty in crafting and enforcing an order requiring the protector to investigate afresh, and comforted by the acceptance at the hearing that if the report was set aside, the protector would, in any event, recommence the investigation, the appeal court declined to order a new one.
The judgment is important not only because it vindicates one of the M&G‘s most important pieces of investigative journalism, but also because the appeal court has reminded us of the importance of the public protector’s office.
The court notes that this institution is one of our “indispensable” constitutional guarantees, that its purpose is to inspire confidence in the public that all is well in public life. In its analysis of the Public Protector Act, the SCA draws the landscape in which the protector should operate, highlighting its central role in actively investigating corruption and malfeasance in public office and emphasising the sweeping powers the protector has at its disposal to carry out investigations.
It will be of some comfort to the present protector to know that even the appeal court recognises that to act without fear, favour or prejudice in the investigation of corruption sometimes calls for considerable courage.
If future investigations are to pass judicial muster, it would seem that they must be underpinned by three key principles. First, they must be approached with an “open and inquiring” mind. What is important is the content of what people say to the investigators, not who they are. As the SCA points out, “truth and deceit know no status or occupation”.
If in the course of an investigation the protector simply accepts the responses received — particularly from people in high office — and simply recites them as if they were fact, he or she is no more than a glorified spokesperson.
Second, it is not the protector’s function to sit back passively and adjudicate complaints levelled against state functionaries. His or her role is to actively seek out the truth, even, in appropriate cases, take the initiative by proactively investigating information that has come to light of maladministration, malfeasance or impropriety in Âpublic life.
And last but not least, the ultimate test of the protector’s mettle is his or her ability to work “without fear, favour or prejudice”, an imperative that is non-negotiable and required by section 181(2) of the Constitution.
Recognising that fulfilling this demand will sometimes call for courage, the appeal court suggests that this could be achieved by “constant vigilance and conviction of purpose”.
Pamela Stein is an attorney at Webber Wentzel, who acted for the Mail & Guardian in its case against the public protector.