/ 4 June 2015

Two reports, same law, one redress

Standing firm: Thuli Madonsela says she will not accede to suggestions to 'let sleeping dogs lie' and wants a higher court to rule on the Nkandla matter.
Standing firm: Thuli Madonsela says she will not accede to suggestions to 'let sleeping dogs lie' and wants a higher court to rule on the Nkandla matter.

Two days ago, the Daily Dispatch published an article titled MEC pays ill-gained state funds, which went pretty much unnoticed by other media. Key conversations in the media around the same time were dominated by big amounts of money, such as the R248-million state expenditure on the president’s private home in Nkandla; a R120-million alleged “bribe” or “gift”, depending on which side you are on, paid or given by South Africa in connection with the country’s hosting of the 2010 Fifa World Cup; and a R17-million golden handshake allegedly given to the outgoing national director of public prosecutions on his resignation after a stint of less than two years.

A report, titled Permitted Benefits, led to an Eastern Cape MEC, Pemmy Majodina, paying back R15 000 in overpaid travel benefits may have missed most media, but the reaction from the public protector team was jubilant. We applauded the MEC and the province’s premier for respecting the rule of law. We considered the conduct exemplary with regard to public accountability and compliance with the Constitution, particularly sections 136, 181 and 182, which deal with executive ethics and the oversight role of the public protector.

A few days earlier, my office had issued a statement warning the public and public functionaries to take another report issued by the minister of police on May 28 with a pinch of salt; the report had serious shortcomings, fatally impairing its value. The statement also announced my intention to write to the president, advising him about the report’s shortcomings – we saw inaccuracies, incomplete information and innuendo – and providing him with the correct information. As I write, the public protector team is finalising that document.

The police minister’s report comes 15 months after I submitted to the president and simultaneously released to the public a report titled Secure in Comfort, communicating my findings and appropriate remedial action on Nkandla.

Like the Permitted Benefits report, Secure in Comfort was conducted under the Executive Members’ Ethics Act and in response to alleged violations of the executive ethics code, although the latter report dealt with acts of other public functionaries and service providers whose conduct transcended the Act.

The finding was that the president had acted unethically by failing to intervene when it became clear, through a media report in 2009, that he might be getting upgrades to his home beyond what was permissible, and that he and his family had indeed unduly benefited from the capital injection into his property through the non-security upgrades. As redress, I requested the president to take measures to assess the cost of the non-security benefits to his home and thereafter pay a reasonable percentage thereof, and that he should be assisted in calculating this by the national treasury and the South African Police Service.

Within 14 days of receiving my report, the president wrote to Parliament advising that he had noted that three state agencies or institutions, including my office, had all investigated the Nkandla upgrades; he would give the matters before him full and proper consideration, including the Special Investigating Unit report. He would further provide Parliament with a report on the executive interventions he would consider appropriate.

Later, in a report to the speaker of the National Assembly, dated August 14 2014, the president wrote the following: “The minister of police, as the designated minister under the National Key Points Act, [is] to report to Cabinet on a determination to whether the president is liable for any contribution in respect of the security upgrades having regard to the legislation, past practices, culture and findings contained in the respective reports …”.

I wrote two letters to the president, pointing out that asking the minister of police to decide whether he had to pay was neither in line with the remedial action in my report nor ethically sound. The president had not commented on my report or indicated whether there was anything wrong with my findings and remedial action, as required by section 34 of the Executive Members’ Ethics Act. I pointed out that this placed the minister of police in an invidious position because he serves at the behest of the president, on whom alone executive authority is conferred.

I sent a letter with similar concerns to the speaker of the National Assembly. After debating the matter Parliament resolved, inter alia, that the police minister should determine if and how much the president had to pay. Nothing was said about the ministers I had said had to be held accountable for permitting the extension of impermissible benefits to the president and allowing an unconscionable cost escalation.

Compare the two responses with a public protector’s report, given above. Bear in mind that the law being enforced in respect of the two reports is the same, the Executive Members’ Ethics Act. The principles applied in the 450-page Secure in Comfort are the same as those applied in Permitted Benefits. Key among these is the understanding that public power and resources may only be used in accordance with the law, within the confines of the authority given by that law and in the public interest.

Public functionaries employed by the state are entitled only to employment benefits stipulated by law and related policies. When such benefits have been overpaid or extended, redress includes paying back their value or a reasonable portion thereof. This happens all the time to public servants, and the principle was accepted by the president in previous reports such as In the Extreme and Costly Moves.

Why then have there been such disparate responses to similar issues involving the same law, in the same country and within the same executive? I truly have no idea.

What I do know is that the response of the Eastern Cape government is consistent with both the process outlined in the Act and the general principle of accountability. My understanding is that accountability includes taking responsibility and making amends or redressing a wrong.

In my view, the Eastern Cape response is also in line with Nelson Mandela’s words at the launch of the public protector’s office: “Even the most benevolent of governments have within them the propensity for human failings.” Our constitutional architecture incorporates independent institutions, such as the public protector, to help the people hold the government accountable. This reasoning understands that mistakes will be made; some of these will be picked up by institutions supporting constitutional democracy, such as the public protector, and the correct response from public functionaries is to take responsibility, redress the situation and avoid a repeat.

Eastern Cape MEC Pemmy Majodina
The public protector cites the move by Eastern Cape MEC Pemmy Majodina to repay undue travel benefits as exemplary. (Deon Ferreira/Gallo)

After the minister of police’s report was released, some people tweeted that I should “let sleeping dogs lie”. But to do so would be an abdication of responsibility. The Constitution says the public protector has the power to investigate, report and take appropriate remedial action in response to improper or prejudicial conduct in state affairs.

In Public Protector vs Mail & Guardian in 2011, the Supreme Court of Appeal said the constitutional mandate gives the public protector both a power and a responsibility to support and strengthen constitutional democracy: “The office of the public protector is an important institution. It provides what will often be a last defence against bureaucratic oppression, and against corruption and malfeasance in public office that are capable of insidiously destroying the nation. If that institution falters, or finds itself undermined, the nation loses an indispensable constitutional guarantee.”

The Public Protector Act of 1994 envisages the resolution of a dispute regarding alleged public wrongs as the end result of the public protector’s actions. In my considered view, a public protector’s report that is neither implemented nor successfully reviewed by a competent authority cannot amount to a resolved dispute. Our strategic plan, Public Protector Vision 2020, approved without reservation by Parliament, includes following up on the implementation of remedial action. Monthly, quarterly and annual reports are prepared on the implementation of remedial action, and its effect is included in my annual report.

My reading of the Constitutional Court judgment in Khumalo vs MEC for Education KwaZulu-Natal (quoted in Permitted Benefits and my statement when I issued Secure in Comfort) is that, as a public functionary, I’m duty-bound to act when I see an irregularity or a real risk of one. In the case in point I state: “When, as in this case, a responsible functionary is enlightened of a potential irregularity, section 195 lays a compelling basis for the founding of a duty on the functionary to investigate and, if need be, to correct any unlawfulness through the appropriate avenues.”

Where to now? The Western Cape high court has said that “a definitive judgment in relation to the public protector’s powers and the legal effect of the remedial action taken by the public protector is critical to the effective functioning of our democracy”. Our sentiments at the public protector’s office are the same.

The uncertainty is unhealthy. Parliament itself started with ad hoc committee members saying they would not review my decisions because that would be unconstitutional, but by the end of the process some of my decisions had been reviewed – including asking the police minister to determine whether there should be payment [by the president].

The minister’s report is seen by some as a review, though it does not deal with my report holistically. It selectively picks up some issues, criticising some out of context and making an issue of non-issues.

Sides have already being taken along party lines and the process is already flawed, so I doubt the anticipated National Assembly ad hoc committee process to deal with the minister’s report will take us any further. I believe that we should accept that we’ve done our best, and that the forum in which to decide which report is in line with the Constitution and the rule of law is a superior court.

Advocate Thuli Madonsela is the public protector