Suspended public protector Busisiwe Mkhwebane and advocate Dali Mpofu.(David Harrison/M&G)
Late one wet and cold Cape Town night during the Constitution drafting process in 1996, National Party member of parliament and former cabinet minister Sam de Beer led the later speaker and deputy president, Baleka Mbete, to me, by the hand. “Please talk to Baleka,” he pleaded. The public protector was being discussed. The former government pegged much hope onto the office — the new one began to realise the embarrassment an independent active public protector could cause.
South Africans were idealistic though. We even chose our own name for the internationally known “Ombudsman”, or “Ombud”.
The parliamentary committee hearing on public protector Busisiwe Mkhwebane has been dragging on for weeks. Yet again, ordinary people wonder about lawyers, politicians and our constitutional institutions.
According to the Constitution, judges have to be “fit and proper” persons. What makes one fit and proper is not explained. The National Prosecuting Authority Act of 1998 added: “with due regard to … experience, conscientiousness and integrity.” The 2012 constitutional court decision invalidating the appointment of national director of public prosecutions Menzi Simelane referred to this Act, but found it unnecessary to determine whether he was a fit and proper person.
The Constitution does not expressly require the public protector to be a fit and proper person. Has this made appointments easier?
According to the Constitution, a judge may be removed from office by the National Assembly if the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent, or is guilty of gross misconduct. In contrast, the public protector may, under section 194, be removed from office if a committee of the Assembly finds incompetence or misconduct.
Only “grossly” incompetent judges and those guilty of “gross” misconduct may thus lose their jobs. For the public protector “mere” incompetence or misconduct suffices.
The difference between judges and the public protector regarding appointment and removal possibly reflects the “hard” independence of courts, as opposed to the “softer” independence of chapter nine institutions supporting constitutional democracy. Judges hear multiple difficult matters. Appeals against judgments regularly succeed. They need protection against disgruntled litigants. After all, we all make mistakes.
But do we want judges who are incompetent, just not grossly so, or who misbehave badly, but less than grossly, to oversee the rule of law? Is an incompetent public protector more dangerous than an incompetent judge? Furthermore, misconduct and competence may occur in degrees, but does this apply to incompetence? How much more incompetent can one be than incompetent?
Be that as it may, the committee only has to decide whether Mkhwebane is guilty of misconduct, incompetent, or both. Because of the word “or” in section 194, either one of the two is enough. And enough is enough.
Courts have repeatedly reviewed and set aside her reports. Scathing findings have been made. Descriptions like “gross negligence”, “recklessness”, “bias” and “blatant dishonesty” have been used. So, why do evidence leaders present a long line of witnesses to the committee?
On behalf of Mkhwebane, advocate Dali Mpofu argues that the judgments are not conclusive, but mere opinions with which parliamentarians may disagree.
The committee has to decide on this. However, the possible practical consequences for the committee having to re-judge many complex cases that took courts months to adjudicate on, could be startling.
Perhaps the truckloads of evidence are presented in order to make very sure that a desired outcome is reached. With some parliamentarians, one never knows.
Evidence might portray her as an unpleasant person, a self-absorbed boss. But does inflated self-importance, the insistence on being addressed as “madam” and rude behaviour make one incompetent for the job at hand? Many competent, efficient people are unpopular bosses.
What, then, does show incompetence? For every one of the reports having been set aside on review, there might be many others never even taken on review. This does not say much, though. For those on the receiving end of findings and recommendations, it might simply not have been worth the while to embark on review proceedings. The fact that millions of people are not murdered or killed in car accidents does not mean that crime is under control and road safety is up to scratch, given the unacceptable numbers of victims.
Lawyers think about burdens of proof, loopholes and complexities and get paid to argue about them. However, an ordinary person with some common sense and a reasonable ability to read the Constitution might wonder if a robust approach and focus on one report could not clinch the matter and save money.
The public protector’s 9 June 2017 report was supposed to deal with the question of whether the Reserve Bank had recovered money owed to it under a financial assistance agreement with Absa. However, she became “activist” and directed: “The chairperson of the Portfolio Committee on Justice and Correctional Services must initiate a process that will result in the amendment of section 224 of the Constitution, in pursuit of improving socio-economic conditions of the citizens of the Republic, by introducing a motion … and thereafter deal with the matter in terms of section 74(5) of the Constitution.”
“Section 224 of the Constitution should then read …”, she continued; and furnished a detailed formulation of the new section 224 she wanted.
Before the high court, the speaker of the National Assembly, Baleka Mbete, argued that the “order that the Constitution must be amended to strip the Reserve Bank of its primary function protecting the value of the currency is entirely unrelated to” her findings. The high court agreed and set the report aside.
The public protector’s order indeed boggles the mind. The Constitution was democratically adopted after years of negotiation and debate. Section 224, on the Reserve Bank’s mandate, is part thereof. Yet, emphatically, as if omnipotent, she redrafted it. Parliament “must” just amend it.
The first concern is one of law and logic. The Constitution is the supreme law. The courts and public protector are subject to it. Even the apex court cannot amend it, or order its amendment. Constitutionally the public protector may not even investigate court decisions; yet she assumed the power to demand the amendment of the very Constitution under which she functioned. One does not even need concepts like separation of powers and ultra vires to see the folly. What if she wishes to amend her own constitutional powers?
The second is simple logic. Mkhwebane ordered that parliament had to initiate a process and deal with the matter in terms of section 74, which provides for constitutional amendments. A two-thirds majority in the Assembly is necessary. At least theoretically, voting requires making up one’s mind, presumably after a debate. What is there to debate and vote on if the exact wording is already determined and formulated by the one who instructs the debate? May members of the Assembly vote against the amendment? Why even go through the whole section 74 process? If the public protector can order prescribed constitutional amendments, section 74 becomes a mere formality, if not redundant.
We do all make mistakes. But if this is not incompetence, gross or otherwise, what is it then? The only alternative is an unacceptable ulterior motive. But, even then, one must be pretty incompetent to hope to get away with it.
On appeal regarding costs, she argued that her “errors” — including undisclosed unminuted meetings with spies and the presidency — were “innocent”. In this case, innocence might indeed confirm incompetence.
The constitutional court, however, found that the “entire model of investigation was flawed” and referred to her “persistent contradictions”.
Her explanation was “not credible”. She was “not honest” about her engagements during the investigation. This reads like the finding of an everyday criminal court on the evidence of a lying witness.
Which one of innocent incompetence, or wilful misconduct, is the worst for an office mandated to protect our constitutional democracy — and whether one may mitigate the other — I do not know. If only we could return to the hope of 1996.
Johann van der Westhuizen, who assisted in drafting South Africa’s Constitution, is a retired justice of the constitutional court.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.
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