The Public Protector has the power to direct organs of state to take certain steps, “and even direct how those steps should be taken”. This is according to a letter from the office of the Public Protector to national director of public prosecutions (NDPP) Shamila Batohi.
The letter — from Muntu Sithole, the acting manager of legal services at the office of the public protector — was in response Batohi querying the remedial action directed at her in the public protector’s Bosasa report.
The report found that President Cyril Ramaphosa had deliberately misled Parliament over a donation from Gavin Watson — the chief executive of African Global Group, formerly known as Bosasa — to his CR17 campaign for presidency of the ANC at the party’s Nasrec elective congress in 2017. She said there was “merit” in a suspicion of money laundering as the Bosasa payment had been made through “several intermediaries”.
One of the remedial actions Mkhwebane directed was that Batohi must, within 30 days, “take note” of her report and “conduct further investigation into the prima facie evidence of money laundering as uncovered during my investigation”.
She further instructed that Batohi submit an implementation plan for the remedial action for her approval.
In her letter dated August 5, Batohi had asked whether there had been a “misunderstanding” about the “independent mandates about our respective offices”. She said if the intention was to notify her of the public protector’s “opinion” that her investigation disclosed the commission of a crime, this was welcomed.
However, Batohi was “concerned” that the wording of the remedial action applying to the NPA “appear to record the exercise of a power which you perhaps never meant to exercise,” said Batohi. Referring to an exchange of letters between the public protector and the Presidency on his court challenge to the Bosasa report, Batohi said the correspondence “suggests there might be a misunderstanding”.
“I understand and appreciate that, in terms of [the Public Protector Act], a public protector can do no more than notify the relevant authority charged with prosecutions, of his or her opinion that the facts disclose that an offence has been committed,” Batohi said.
She asked Mkhwebane to clarify urgently whether the intention was to “simply to notify”.
“If that is so, I request that you please amend the wording of those paragraphs to clearly reflect this,” Batohi said.
In his correspondence, Sithole said that it was not clear what there was to clarify in the remedial action.
Referring to the Constitutional Court’s decision in the Nkandla case and the high court decision over the ‘State of Capture’ report, he said: “The case law is clear that the public protector can direct organs of state to take certain steps, an even direct how those steps should be taken.
“Although the public protector cannot dictate to the NDPP how the investigation must unfold, the NDPP must nevertheless submit an implementation plan as recorded in the report.”
It would be “meaningless” if the public protector could do no more than direct an organ of state to “merely note” her findings “and do nothing consequential about those findings,” he said.
Sithole said the public protector could “deduct suggestive undertones of unlawfulness of her remedial actions” from the NDPP’s letter. But it was “incorrect” to suggest, as Batohi had, that that she was exercising a power she did not have.
She could not amend her report, he said, as she was now functus officio — her mandate had been discharged and she precluded by law from doing anything further to her report.
Sithole added that the public protector had a “worrying concern” that a “reasonable inference can be drawn” that Batohi’s letter was sent to the PP after “unilateral engagement with the President’s attorney’s and at the advice of the President’s attorneys”.
Bulelwa Makeke, the National Prosecuting Authority’s head of communications, confirmed receipt of the letter and said “the two offices will continue to engage”.