The Public Protector, The Committee And The Courts – What To Do With The Judicial Findings?

This brief explores the constitutional role of the Section 194 Committee tasked with establishing whether Public Protector Adv Busisiwe Mkhwebane has committed misconduct or is incompetent to hold office. It argues that in the course of carrying out its work, the Committee has no power to second guess judicial findings.

Introduction

Currently, an impeachment process is underway before Parliament. It is an unprecedented process – the first time in democratic South Africa that the provisions of section 194 of the Constitution, which relate to the removal from office of Chapter Nine office-bearers, have been implemented. The Parliamentary Committee, tasked with establishing whether Public Protector Adv Busisiwe Mkhwebane has committed misconduct or is incompetent to hold office and so merits an impeachment vote by a full sitting of Parliament began its work on 11 July 2022.

It is not yet two weeks into that process, only three witnesses have been called, its schedule has already been delayed, and it seems clear it will not meet its slated deadline of the end of September 2022. Most disturbingly, those involved in the Committee process seem unclear as to what the Committee and its process might constitutionally and lawfully do. And yet they should not be: it is beyond dispute that the Committee’s processes may not be used to relitigate that part of Mkhwebane’s fate that has already been decided in our courts. The Committee may not be illicitly repurposed as a court of appeal. That is not only because it is poorly positioned to relitigate the raft of court findings that have revealed so clearly Mkhwebane’s moral and professional delinquency, but because it is constitutionally prohibited from doing so. This brief explains why.

The Nature Of The Inquiry And The Role Of The Section 194 Committee

During his opening address on Mkhwebane’s behalf, Adv Dali Mpofu SC suggested that the Committee is not bound by judicial findings against Mkhwebane. In his words, the Committee must do its “own assessment of those issues” that the courts have pronounced on.¹ The reason why Mr Mpofu is eager to distance the work of the Committee from the judicial findings that preceded it is, of course, because the adverse findings do not favour Mkhwebane’s defence against her impeachment. No less than six court judgments, one of which was handed down by the Constitutional Court, were attached as evidence in support of the motion that initiated her impeachment.² Tellingly, these do not exhaust the total number of adverse findings made by the courts against Mkhwebane.³

Given that the Committee is tasked with “establish[ing] the veracity of the charges”⁴ put forth in the motion, presumably the Committee would be derelict in its section 194 duties if it took any evidence at face value. So, one should expect some level of engagement with the adverse judicial findings in the course of the Committee’s proceedings. Nevertheless, one should also expect this engagement to occur within reasonable limits, given that the Committee, as stated in its terms of reference, is “neither a judicial or quasi-judicial process, nor is it an adversarial process” but is instead an “inquisitorial process, informed by Parliament’s constitutional oversight mandate.”⁵

From within the bounds of this mandate, one can certainly argue that it would be appropriate for the Committee to ask whether the court findings against Mkhwebane, collectively or individually, imply that her conduct meets the definition of ‘incompetence’ or ‘misconduct’ as defined in the Rules.⁶ This is a perfectly sensible way for the Committee to engage with the judicial findings against Mkhwebane because the courts that produced them were not seized with the same questions as those which must be determined in terms of section 194 of the Constitution. They were required to consider different questions: for instance, whether the case for review and set aside of a particular impugned report had been met in that the Public Protector proceeded without the requisite lawful authority, failed to observe procedural fairness, or demonstrated bias, as the case may be. Those questions are certainly of relevance in determining whether the Public Protector has committed misconduct or is incompetent but they are not in themselves a substitute for such determination. That determination has not yet been made.

What the Committee cannot do is use the opportunity afforded by the section 194 inquiry to overturn judicial pronouncements against Mkhwebane. This point was well-made by evidence leader Adv Nazreen Bawa SC in her opening address to the Committee. There she rightly explained that the Committee is not tasked with determining whether the judicial pronouncements against Mkhwebane were correct. In her words, “the issues before this Committee are whether what is contained in the Motion constitutes misconduct and incompetence on the part of the Public Protector, and part of that inquiry will be to look at whether in that assessment the judgments either reflect or do not reflect misconduct and/or incompetence - it is not for this Committee to make any determination as to the correctness of the judgment in the process of doing so”.⁷

The Committee Is Legally Obliged To Accept Judicial Findings

The position set out by Ms Bawa as to the Committee’s appropriate treatment of the court judgments against Mkhwebane aligns with the jurisprudence of the Constitutional Court, which maintains that findings made by the courts – indeed of the Public Protector as well – cannot be second-guessed or altered by the National Assembly. In EFF 1,⁸ the Constitutional Court declared unconstitutional two ad hoc parliamentary committees ostensibly established to “examine” findings the then Public Protector, Adv Thuli Madonsela, made against former President Jacob Zuma.⁹ The Constitutional Court held that–

“[T]here was everything wrong with the National Assembly stepping into the shoes of the Public Protector, by passing a resolution that purported effectively to nullify the findings made and remedial action taken by the Public Protector and replacing them with its own findings and ‘remedial action’. This, the rule of law is dead against. It is another way of taking the law into one’s hands and thus constitutes selfhelp.”¹⁰

A clear analogy presents itself in the context of Mkhwebane’s section 194 inquiry if the intention is to invite the Committee to step into the shoes of the courts and revisit what was found in formal judicial proceedings. It is not open to a committee of Parliament to second-guess the findings of the Public Protector, and it is surely not open to a section 194 committee to second-guess judicial findings.

That conclusion is clearly underlined by Zondo DCJ (as he then was) in EFF 2.¹¹In pointing to the binding nature of court judgments and the relationship of judicial findings to the oversight role of the National Assembly, he cites section 165(5) of the Constitution, providing that “an order or decision issued by a court binds all persons to whom and organs of state to which it applies”. As he explains:

“Once this Court had pronounced that the President had violated the Constitution, nobody – not least the National Assembly or any committee or body created by it – could conduct an investigation whether, indeed, that was so. No such committee could alter that conclusion or second-guess it. Therefore, that finding or conclusion or order stood. We held in EFF 1 that the National Assembly and the President could not second-guess the Public Protector’s remedial action. In this case we cannot make a pronouncement the effect of which is that a decision of this Court could or can be second-guessed by the National Assembly or any committee or structure created by it.”¹²

By parity of reasoning, the adverse judicial findings against Mkhwebane must stand and are determinative until and unless they have been set aside by a court of law, which is not the case here. The rule of law does not afford Mkhwebane the opportunity to relitigate these findings within a process which is constitutionally obliged to observe and uphold such findings. This is not to deprive Mkhwebane of a defence or to maintain that the court findings cannot be engaged by the Committee, only that any evidence adduced or argument made must go to demonstrating that the underlying court judgments do not individually or collectively go to establishing misconduct or incompetence.

The National Assembly’s Oversight Powers

Even without reference to the Constitutional Court’s jurisprudence, which is determinative, it would be a gross misunderstanding of the National Assembly’s constitutional oversight power were there any suggestion that the Committee might second-guess or alter judicial findings. In terms of section 55(2)(b)(ii) of the Constitution, the National Assembly’s constitutional power of oversight only extends to organs of state. Section 239 of the Constitution expressly excludes courts and judicial officers from the definition of an organ of state – removing them from the National Assembly’s oversight role by clear implication. That is because our constitutional framework has been carefully designed so that courts are insulated from the political forces so clearly at work in parliamentary committees. To allow the National Assembly, through its committees, to relitigate what has been finally decided by our courts is to upend our constitutional framework, subordinate our courts and offer organs of state immunity from the courts’ reach.

Conclusion

If the judgments relied on in support of the impeachment motion cannot be second-guessed or altered by the Committee, it means that they are binding on the Committee. The effect thereof is that the window for Mkhwebane to relitigate the findings made against her is firmly shut. Whatever objection Mkhwebane has to those findings should have been raised by her well-funded expert legal team during litigation. The Committee is not only ill-equipped to overturn the findings of a court – it is prohibited by law from doing so by the pronouncements of the Constitutional Court and the combined import of sections 55(2)(b)(ii) and 239 of the Constitution. All the Committee can lawfully do at this point is ask whether the judicial findings against Mkhwebane, in all their legal and moral clarity, rise to meet the definition of ‘misconduct’ and ‘incompetence’ as set out in the Rules.

Jos Venter
Legal Researcher
jos@hsf.org.za

Judicial Findings Against Adv Busisiwe Mkhwebane

Case Citation

Findings of the Court

South African Reserve Bank v Public Protector and Others 2017 (6) SA 198 (GP)

The South African Reserve Bank instituted urgent proceedings to set aside parts of the remedial action ordered by the Public Protector in her report into the alleged failure of the government to implement the CIEX report, which suggested that the government did not recover monies paid by the Reserve Bank to Bankorp between 1985 and 1995. The remedial action instructed the Chairperson of the Portfolio Committee on Justice and Correctional Services to take steps to alter the mandate of the Reserve Bank by way of a constitutional amendment. The High Court set the remedial action aside.

Para 12: “The Public Protector was persuaded that she should assume jurisdiction within her discretion because ‘the matter deserved to be investigated with finality as the uncertainty it cast on the integrity of the Government, the SARB and financial services sector regulation was not good for the country.’ In making this finding, the Public Protector made no mention of the fact that the matter had been the subject of two independent judicial investigations, both of which had concluded that recovery was not feasible.”

Para 39: “The complaint filed by Mr Hoffman was concerned broadly with whether the Reserve Bank had recovered what was owed to it under the terms of the financial assistance package. From the point of view of the Reserve Bank, the CIEX report was wrong to conclude that there was any amount still owing to the Reserve Bank after the repayment of the financial assistance. All amounts due and owing were fully paid up before the Office of the Public Protector was created. Yet, despite the evidence and explanations provided to her, the Public Protector is not persuaded and continues to maintain that there is still money to be recovered. The correctness or rationality of that finding, as I have indicated more than once, is a matter to be determined in the other review application. The point though for present purposes, is that the original complaint was limited to that question. Mr Hoffman made no complaint about the primary object of the Reserve Bank. His complaint and the initial investigation of it were not concerned with the Reserve Bank’s constitutionally entrenched powers. Moreover, given that the impugned remedial action did not overtly flow from any identified aspect of the investigation in either the preliminary or final report, it is difficult to discern precisely the rationale for the remedial action. This brings into question the appropriateness and legality of the remedial action.”

Para 41: “Nothing in the final report reflects that any allegation was made by any person in relation to the Reserve Bank’s mandate. Moreover, and in any event, it is doubtful whether the constitutional definition of the Reserve Bank’s primary object can ever constitute maladministration, improper or prejudicial conduct as contemplated in section 182(1) of the Constitution or section 6 of the [Public Protector] Act.”

Para 43: “The Public Protector’s order trenches unconstitutionally and irrationally on Parliament’s exclusive authority. . . The Public Protector does not have the power to prescribe to Parliament how to exercise its discretionary legislative powers. . . She has no power to order an amendment of the Constitution.”

Para 55: “The attempt to pass off the remedial action as a mere recommendation is disingenuous. The language in which the remedial action is formulated is peremptory.”

Para 57: “The Public Protector’s superficial reasoning and erroneous findings on the issue, as appear in the final report and the answering affidavit, do not provide a rational basis for the remedial action and hence the criticisms of it are well-founded.”

Para 58: “The preliminary report was issued to allow interested parties to comment before final remedial action was ordered. Nowhere in the preliminary report did the Public Protector disclose that she was considering remedial action that would amend the primary object of the Reserve Bank. Given the far-reaching nature of the impugned remedial action and the reasonably foreseeable material impact it would have on the Reserve Bank and the stability of the financial sector, it was incumbent upon the Public Protector to have given notice to the Reserve Bank of this intended action and to have called for comment on it. She amended the scope of the investigation and the remedial action without notice to any person likely to be affected. . . . The Public Protector failed in her duty in this respect with consequences that were severely damaging not only to the economy but to the reputation of her own office. She furthermore failed to honour an agreement made with the Reserve Bank to make her final report available to the Reserve Bank five days before its release.”

Para 59: “[T]he Public Protector’s explanation and begrudging concession of unconstitutionality offer no defence to the charges of illegality, irrationality and procedural unfairness. It is disconcerting that she seems impervious to the criticism, or otherwise disinclined to address it. This court is not unsympathetic to the difficult task of the Public Protector. She is expected to deal with at times complex and challenging matters with limited resources and without the benefit of rigorous forensic techniques. It is easy to err in informal alternative dispute resolution processes. However, there is no getting away from the fact that the Public Protector is the constitutionally appointed custodian of legality and due process in the public administration. She risks the charge of hypocrisy and incompetence if she does not hold herself to an equal or higher standard than that to which she holds those subject to her writ. A dismissive and procedurally unfair approach by the Public Protector to important matters placed before her by prominent role players in the affairs of state will tarnish her reputation and damage the legitimacy of the office. She would do well to reflect more deeply on her conduct of this investigation and the criticism of her by the Governor of the Reserve Bank and the Speaker of Parliament.”

Absa Bank Limited and Others v Public Protector and Others [2018] 2 All SA 1 (GP)

Absa Bank, the South African Reserve Bank, the Minister of Finance and the National Treasury lodged applications to review and set aside the report of the Public Protector into the government’s alleged failure to implement the CIEX report. The review was successful and the Public Protector was ordered to pay costs on a punitive scale in her official and private capacity as a result of her bad faith conduct.

Para 32: “[T]he Public Protector did not disclose that she had also met with officials from the Presidency and representatives of an organisation known as Black First Land First (BFLF). Furthermore, in the final Report the Public Protector's recommended remedial action is totally different to that proposed in the preliminary report. This was done without affording the applicants an opportunity to comment on the conclusions reached in paragraph 6 of the Report and the intended remedial action.”

Para 70: “The Public Protector acted in a manner inconsistent with the provisions of the Constitution and the Public Protector Act, by placing a duty on the SIU to re-open the investigation and to recover the misappropriated public funds from ABSA. She exceeded the powers entrusted to her by the Constitution and the Public Protector Act.”

Para 87: “The Public Protector never alerted ABSA to the prospect that she would incorporate the SIU in her remedial action. This was a material omission that violates ABSA's right to procedural fairness and is also an indication of further one-sided conduct by the Public Protector.”

Para 95: “The reason that the Public Protector gives for affording the Presidency and the SSA the opportunity to consult with her, after she had decided to change the focus and remedial action of her investigation substantially without affording the reviewing parties a similar opportunity, is disingenuous.”

Para 101: “The Public Protector did not disclose in her report that she had meetings with the Presidency on 25 April 2017 and again on 7 June 2017. It was only in her answering affidavit that she admitted to the meeting of 25 April 2017, but she was totally silent on the second meeting which took place on 7 June 2017. She gave no explanation in this regard when she had the opportunity to do so. Having regard to all these considerations, we are of the view that a reasonable, objective and informed person, taking into account all these facts, would reasonably have an apprehension that the Public Protector would not have brought an impartial mind to bear on the issues before her. We therefore conclude that it has been proven that the Public Protector is reasonably suspected of bias. . .”

Para 120: “The Public Protector did not conduct herself in a manner which should be expected from a person occupying the office of the Public Protector. . . . She did not have regard thereto that her office requires her to be objective, honest and to deal with matters according to the law and that a higher standard is expected from her.

Para 127: “In the matter before us it transpired that the Public Protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour or prejudice. She failed to disclose in her report that she had a meeting with the Presidency on 25 April 2017 and again on 7 June 2017. As we have already pointed out above, it was only in her answering affidavit that she admitted the meeting on 25 April 2017, but she was totally silent on the second meeting which took place on 7 June 2017. She failed to realise the importance of explaining her actions in this regard, more particularly the last meeting she had with the Presidency. This last meeting is also veiled in obscurity if one takes into account that no transcripts or any minutes thereof have been made available. This all took place under circumstances where she failed to afford the reviewing parties a similar opportunity to meet with her.”

Para 129: “[T]his is a case where a simple punitive costs order against her in her official capacity will not be appropriate. This is a case where we should go further and order the Public Protector to pay at least a certain percentage of the costs incurred on a punitive scale. We therefore conclude that all three review applications should succeed. The Public Protector, in her official capacity, should be ordered to pay 85% of the costs of the application by the South African Reserve Bank on an attorney and client scale, and the balance of 15% should be paid by the Public Protector in her personal capacity.”

Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC)

The Public Protector approached the Constitutional Court directly to appeal the personal and punitive cost orders that the High Court made against her in setting aside the Reserve Bank report. The Constitutional Court agreed with the High Court that the Public Protector conducted herself in a manner that fell short of what the Constitution required of her and it dismissed the application.

Para 64: “The Public Protector got the law completely wrong by acting as if it was open to her to direct Parliament to amend the Constitution and even in a specific way. She, like any other citizen, could of course suggest, but most certainly could not take remedial action, to that effect.”

Para 65: “[A]n objective, reasoned and calm approach to the Public Protector’s ill-advised or over-zealous proposal must inevitably lead to the conclusion that it was inconsequential, never posed any real, but only an imaginary, threat to the well-being of the Reserve Bank, and all other interested parties, including the reasonably informed economic forces or markets. The remedial action was bound to be set aside with ease.”

Para 81: “[T]he Public Protector failed to give answers that could convincingly put to rest questions around some of these points of criticism. She fumbled around in a way that is somewhat concerning. It baffles me that she was unable to explain herself even with the benefit of legal representation.”

Para 162: “The immunity which the Public Protector enjoys against personal liability under section 5(3) is only triggered when she acts in good faith. The High Court held that the Public Protector exceeded the bounds of this indemnification in the present matter. To the extent that the Public Protector conducted herself in bad faith, the potential immunity she may otherwise enjoy under section 5(3) is of no assistance to her. The High Court found that the Public Protector acted in bad faith. This Court has no reason to interfere with this finding.”

Paras 181-183: “The Public Protector’s explanation of the meeting with the State Security Agency is not only woefully late but also unintelligible. In the High Court, the Public Protector ignored the serious concern raised by the Reserve Bank that she was discussing its vulnerability with the State Security Agency. In this Court, no explanation was offered in her founding affidavit. In her replying affidavit, for the first time, she purports to explain this discussion, where she denies that the notes of the meeting with the State Security Agency indicate that she had discussed the vulnerability of the Reserve Bank with it. . .

With due respect to the Public Protector, this makes no sense. . .

It is disturbing that there is no explanation from the Public Protector as to why none of her meetings with the Presidency were disclosed in the final report.”

Paras 186-187: “The record that was produced by the Public Protector was thrown together, with no discernible order or index, and excluded important documents. The Public Protector is wrong when she claims that she ‘filed the entire record’. She did not. She omitted pertinent documents from the record, some of which were only put up for the first time as annexes to her answering affidavit in the High Court, and others, which were disclosed for the first time in this Court.

The Public Protector’s failure to include these documents in the record, or to account for this failure, stands in stark contrast to her heightened obligation as a public official to assist the reviewing court.”

Para 205: “The Public Protector’s persistent contradictions, however, cannot simply be explained away on the basis of innocent mistakes. This is not a credible explanation. The Public Protector has not been candid about the meetings she had with the Presidency and the State Security Agency before she finalised the report. The Public Protector’s conduct in the High Court warranted a de bonis propriis (personal) costs order against her because she acted in bad faith and in a grossly unreasonable manner.”

Para 207: “The Public Protector’s entire model of investigation was flawed. She was not honest about her engagement during the investigation. In addition, she failed to engage with the parties directly affected by her new remedial action before she published her final report. This type of conduct falls far short of the high standards required of her office.”

Para 214: “[H]er conduct still falls short of the standard expected of public officials in litigation. That standard is for full and frank disclosure. The Public Protector’s explanations are neither.”

Para 218: “There is no merit in any of the grounds of appeal advanced by the Public Protector to justify this Court’s interference in the High Court’s exercise of its true discretion to order that the Public Protector pay 15% of the Reserve Bank’s costs in her personal capacity. There was no material misdirection on the part of the High Court in relation to the personal costs order. The personal costs order must stand.”

Para 237: “Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous ‘misstatements’, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.”

Democratic Alliance v Public Protector; Council for the Advancement of the South African Constitution v Public Protector [2019] 3 All SA 127 (GP)

The Democratic Alliance and the Council for the Advancement of the South African Constitution approached the High Court to review and set aside the Public Protector’s report on the Free State Department of Agriculture’s Vrede Integrated Dairy Project. The High Court found that throughout the investigation and reporting of the complaints the Public Protector failed to fulfil her duties and exercise her powers in a constitutionally compliant manner. The review was successful and the report was set aside.

Para 49: “The steps taken by [the Public Protector] seem wholly inadequate, considering the magnitude and importance of the complaints raised.”

Para 60: “On what basis she could justifiably come to such a conclusion is unclear. It points either to ineptitude or gross negligence in the execution of her duties.”

Para 67: “One would have expected the PP to have engaged in an examination of the true, inherent nature of the agreement entered into between the Department and Estina. The PP did not enquire any further into the nature of the irregularities committed, or whether the agreement and execution thereof resulted in misappropriation of public funds. This is inexplicable seen in the broader context of her duties and powers.”

Para 72: “[I]nstead of productively investigating the nature and extent of the irregularities committed to uncover the facts, the PP merely drew ‘an inference’”.

Para 75: “[T]he findings of irregular expenditure in the provisional report were omitted from the final report. In the light of all the facts, this omission by the PP is inexplicable. One may justifiably ask whether this was. done for some ulterior purpose. Unfortunately no explanation was given by the PP for these changes.”

Para 79: “It seems that the PP chose to simply ignore the information supplied to her and then blamed financial constraints for her failure to execute this simple task.”

Para 84: “The failure of the PP to execute her constitutional duties in investigating and compiling a credible and comprehensive report points either to a blatant disregard to comply with her constitutional duties and obligations or a concerning lack of understanding of those duties and obligations.”

Para 91: “The PP’s most blatant failure was to not properly investigate the circumstances surrounding the beneficiaries of the Project, this she also blamed on a lack of resources, The PP had the names and telephone numbers of some twenty beneficiaries, and some even visited her offices with Mr Maimane. Yet no attempt was made to get a statement from any of them. . . . The beneficiaries were the people who should have taken centre stage in this investigation, as they were the people, the vulnerable ones, for which her office was specifically created and who were deprived of an opportunity to benefit and better their circumstances. Instead they were ignored and their interests were relegated to a mere peripheral issue. It is an absolute disgrace that some, as yet unidentified people, benefited, while the poor and the marginalized were yet again robbed of an opportunity to better their circumstances.”

Para 94: “The PP’s failures to undertake these simple and cost effective measures are to put it lightly, of serious concern, as it may point to a concerning incomprehension of the nature and extent of her obligation towards the people of this country and her obligations in terms of the Constitution and the [Public Protector] Act.”

Para 95: “Whatever her office’s resource constraints were, they could perhaps conceivably explain the narrowing of the scope of the investigation, but never explain and justify the irrational and arbitrary findings and material errors of law in the Report, or the inappropriate and ineffective investigation executed by her office.”

Para 109: “The Report by the PP did not address the major issues raised in the complaints, nor the numerous indications of irregularities. In this instance the PP did nothing to assure the public that she kept an open and enquiring mind and that she discovered, or at least attempted to discover the truth.”

Para 116: “The removal of this specific direction was especially inappropriate and irrational given that the PP afforded the Premier, the discretion to determine who the ‘implicated officials’ were as already stated. This must be seen in the context that the Premier had recorded in his response to the section 7(9) notice that there was ‘no credible basis for taking disciplinary steps against the Head of Department’. This position taken by the Premier should have deeply concerned the PP and should have influenced her consideration of appropriate remedial actions. To put people who are implicated in wrongdoing in a position to investigate that very same wrongdoing, is absurd and goes against every known principal of law and logic.”

Democratic Alliance v Public Protector; Council for the Advancement of the South African Constitution v Public Protector 2019 JDR 1582 (GP)

The High Court reserved judgment on the issue of costs after it set aside the Public Protector’s report on the Vrede Integrated Dairy Project. In this judgment, the High Court held that the Public Protector’s conduct warranted the award of personal and punitive costs against her.

Para 25: “The failures and dereliction of duty by the Public Protector in the Estina matter are manifold. They speak to her failure to execute her duties in terms of the Constitution and the Public Protector Act. In my view her conduct in this matter is far worse, and more lamentable, than that set out in the Reserve Bank matter. At least there her failures impacted on institutions that have the resources to fend for themselves. In this instance her dereliction of her duty impacted on the rights of the poor and vulnerable in society, the very people, for whom her office was essentially created. . . . Her conduct during the entire investigation constitutes gross negligence. She failed completely to execute her constitutional duties”

Para 27: “Her inability to comprehend and accept the inappropriateness of her proposed remedial action constitutes ineptitude. . . . The Public Protector failed the people of this country in the way she dealt with the investigation of the Estina dairy project.”

Para 29: “This decision by the Public Protector [to appoint two sets of legal teams to argue the same matter] unfortunately shows a total disregard for the taxpayers, who will have to foot the bill and flies in the face of her complaint about how financial constraints limited her ability to properly investigate the complaints.”

Para 30: “I am satisfied that the requirements for a personal and punitive costs order were met.”

President of the Republic of South Africa and Another v Public Protector and Others [2020] ZAGPPHC 9

President Cyril Ramaphosa approached the High Court to review and set aside the report of the Public Protector that investigated complaints into the CR17 campaign for the ANC leadership that was elected in December 2017. The High Court found that the report, the findings and the remedial action ordered by the Public Protector were unconstitutional and invalid. The review succeeded and the report was set aside.

Para 49: “The Public Protector introduced the element of inadvertent misleading of Parliament into the [Executive Ethics] Code.”

Para 54: “In her treatment of this issue the Public Protector demonstrated a fundamentally flawed approach to the principles underpinning the question of whether the President violated the Executive Code by wilfully misleading Parliament.”

Para 65: “This response displays a deep-seated inability, or refusal, to process facts before her in a logical and fair-minded manner. Such a response is difficult to reconcile with her constitutional obligations.”

Para 74: “[T]he Public Protector did not act with an open mind, and so breached one of the cardinal requirements of her position.”

Para 75: “[N]ot only did the Public Protector commit a material misdirection in her legal approach, but she also reached an irrational and unlawful conclusion on the facts that were before her. Further, she did not approach the issue with an open mind.”

Para 104: “[T]he Public Protector does not appear to have fully appreciated the distinction between her powers and her jurisdictional competence in the approach she took on this issue.”

Paras 120-121: “The Public Protector has not identified any evidence nor facts to substantiate her conclusion[s]”

Para 146: “The conclusion is inescapable that in dealing with this issue the Public Protector completely failed to properly analyse and understand the facts and evidence at her disposal. She also showed a complete lack of basic knowledge of the law and its application. . . . Had she been diligent she would not have arrived at the conclusion she did.”

Para 153: “[T]he Public Protector displayed anything but an open mind. She made serious findings based on unfounded assumptions. She paid no regard to the statute that establishes the very offence in which she implied the President is suspected to have been involved. She also ignored the detailed explanations . . . We find that her findings on the money laundering issue were not only irrational, but, indeed, reckless.”

Para 188: “The Public Protector exceeded the lawful limits of her powers in the remedial action and monitoring measure she directed at the NDPP.”

Para 206: “What makes the Public Protector’s conduct in this regard worse is that despite being requested to give the President an opportunity to respond to the remedial action she had in mind, she refused to do so. The President was not given sight of her remedial action directing the NDPP to investigate money laundering. It is unclear why the Public Protector failed to comply with one of the most fundamental principles of natural justice by declining the President’s request to be permitted to make representations on the remedial action. . . . The Public Protector ought to have understood the importance of not making findings that will have such serious implications without affording a proper hearing to the persons affected. At the very least, she failed to show appreciation for an elementary principle of due legal process.”

Para 212: “The totality of the Public Protector’s conduct highlighted above warrants an adverse costs order against her. In our view, an order that she be directed to pay the President’s costs on an attorney and client scale is warranted.”

Public Protector and Others v President of the Republic of South Africa and Others 2021 (6) SA 37 (CC)

The Public Protector appealed directly to the Constitutional Court against the decision of the High Court to set aside the CR17 report. The Constitutional Court agreed with the High Court and dismissed the Public Protector’s appeal.

*This judgment was handed down after the motion to remove Adv Mkhwebane from office was initiated.

Para 58: “[The Public Protector’s] reasoning is not only devoid of a legal foundation but also reveals ignorance as to how information furnished to Parliament is gathered.”

Para 59: “But what is more concerning with the report is that the Public Protector changed the wording of the Code by adding ‘deliberate and inadvertent misleading of the Legislature’. . . . It is inconceivable that the sole word used in the Code ‘wilfully’ could be read to mean ‘inadvertent’. These words carry meanings that are mutually exclusive. Wilfully cannot include inadvertent. What was done by the Public Protector here exceeded the parameters of interpretation.”

Para 60: “It is unacceptable that the Public Protector did what no law had authorised her to do.”

Para 62: “In this regard, the Public Protector’s finding on the misleading of Parliament issue is fatally flawed due to a material error of law.”

Para 72: “The Public Protector reached the conclusion that the President, as then Deputy President of the country, had personally benefitted from donations made to the CR17 campaign. But her own report which contains the summary of the evidence she heard during the investigation, does not support this conclusion.”

Para 111: “It appears that she disregarded all that evidence and reached a conclusion that was devoid of any factual foundation. The Constitution and relevant legislation require that the Public Protector must conduct proper investigations, rightly evaluate the evidence placed before her and make findings which are supported by established facts. Here the Public Protector’s approach falls short of this standard.”

Para 137: “The Public Protector, like all of us, is fallible and mistakes are to be expected in the course of the exercise of her powers. But what is troubling in this matter is the series of weighty errors, some of which defy any characterisation of an innocent mistake.”

Para 138: “The nature and number of errors committed by the Public Protector here call into question her capacity to appreciate what the law requires of her when she investigates complaints, arising from the violation of the Code.”

Para 140: “Here, the questions asked by the Public Protector led to the undisputed fact that the President had no knowledge of the donations to the CR17 campaign and that he did not personally benefit from those donations. An open and enquiring mind would have accepted those facts and would not have proceeded to hold, without any evidence, that the President had personally benefitted from those donations. An open mind suggests that the Public Protector must be open to being persuaded to reach whatever conclusion justified by the facts. She may not approach any investigation with predetermined outcomes. An open and enquiring mind was not displayed here despite the reference to Mail & Guardian in the Public Protector’s report, as one of decisions she followed. On the contrary, she made findings that were not supported by the facts and it appears that she was ‘unduly suspicious’ of the person she was investigating. Consequently, the investigation was improperly conducted.”

Para 202: “There can be no doubt that the Public Protector was wrong in certain respects. For that, she deserves to be dealt with appropriately. And it is for this reason that I have to reiterate my support for Jafta J’s assertion that she went overboard in making the supervisory order against the Police, the National Prosecuting Authority and Parliament. It was wrong of her to conclude that the President deliberately misled Parliament, and to use ‘wilful’ and ‘inadvertent’ interchangeably when the two are mutually exclusive. The same applies to aspects of her remedial action, alluded to above, that manifest some overzealousness.”

Gordhan v Public Protector and Others [2019] 3 All SA 743 (GP)

The former Commissioner of the South African Revenue Service, Pravin Gordhan, approached the High Court on an urgent basis to interdict the implementation of the Public Protector’s remedial action that was proffered in the report that investigated allegations that Mr Gordhan violated the Executive Ethics Code. The report also investigated allegations of maladministration, corruption and improper conduct by SARS.

Para 46: “This court had to study the report and remedial orders in order to ascertain whether in fact there is irreparable harm to Gordhan. Much of the orders are vague, contradictory and/or nonsensical.”

Gordhan v Public Protector and Others [2020] ZAGPPHC 743

Mr Gordhan approached the High Court to review and set aside the report that investigated allegations that he violated the Executive Ethics Code and allegations of maladministration, corruption and improper conduct by SARS. The review succeeded on the basis that the Public Protector failed to conduct a fair, credible and open-minded investigation into the complaints that resulted in the report.

Para 61: “Apart from the fact that the personal attack on the learned Judge is shockingly inappropriate and unwarranted, the Public Protector’s reading and interpretation of paragraph 2.3(a) of the Executive Ethics Code is wrong in law: The Code prohibits members of the Executive from ‘wilfully’ misleading the legislature. The wording of the Code is clear and does not contain a provision that an ‘innocent’ mistake constitutes a contravention of the Executive Ethics Code. To claim that Potterill J ‘deliberately omitted the words ‘inadvertently mislead’’ from the actual Code, is simply astonishing.”

Para 113: “The Public Protector relies on this report [of the Office of the Inspector General of Intelligence] despite explicitly stating that she has not seen the report.”

Paras 119-120: “Counsel on behalf of the Public Protector now conceded that, despite the explicit statement in the Report that she has not had sight of the OIGI report in preparing the Report, she had in fact had the OIGI report in her possession when she drafted the Report. . . This turn of events is disturbing to say the least and it is difficult to label the Public Protector’s conduct in this regard as anything else but dishonest.”

Paras 125-126: “To add insult to injury, the Public Protector never provided the OIGI report to Minister Gordhan and Mr Pillay to respond to during the Public Protector’s investigation. . . . But probably the most egregious, is the Public Protector’s failure to consider the extensive body of evidence that Mr Pillay provided to the Public Protector.”

Para 182: “By dismissing Mr Pillay and his evidence out of hand, the Public Protector breached her oath of office in the most fundamental way. She discarded the only evidence that served before her under oath, that of Mr Pillay, and instead uncritically adopted, under the guise of conducting her own investigation, the unattributed and anonymous complaint that was delivered to the office of the Public Protector . . . She did not investigate the origin of the complaint or the veracity of the allegations made in the complaint.”

Para 183: “With total disregard to any semblance of a fair investigation the Public Protector did not deem it necessary to interview . . . to satisfy herself that there was any merit in the allegations contained in the complaint.”

Para 191: “[T]he Public Protector adopted a one-sided approach to the investigation. She conducted an imperfect investigation that does not meet the high yardstick of reasonableness that is set in law. Her approach to the investigation was fallacious.”

Para 195: “This evidences the most egregious failure of the Public Protector to understand and honour the most basic requirements of the office she occupies. It is plain that the Public Protector has approached this investigation with an unwavering commitment to her own preconceived views and biases.”

Para 202: “There was no evidence available to support the findings made by the Public Protector.”

Para 204: “The reasoning adopted by the Public Protector in coming to these findings, in light of the evidence available to her at the time of the Report, is illogical and clearly fallacious.”

Para 207: “As a consequence, she did no investigation and elected to make a finding based on no evidence. This is completely irrational.”

Para 219: “It is clear that the Public Protector had plainly refused to have regard to any of these records and evidence and seemingly made no effort to obtain any records from SARS.”

Para 224: “The Public Protector did not act in the manner required in our law of someone fulfilling this extremely important and responsible position. The Report is indicative of her mindset with which she approached the investigation. She postulated herself as a judge, receiving and dismissing evidence at a whim, and then closed her mind to the actual facts available to her to consider.”

Paras 242-243: “The Public Protector however still maintained that Mr Magashula committed perjury and ordered under the remedial action, that the SAPS and the NDPP investigate his ‘perjury’ and act thereupon. An allegation of perjury is of a very serious nature. It infringes upon Mr Magashula’s constitutional rights and subjects him to criminal investigations by the highest authorities. No foundation for such a finding was laid in the Report and was not warranted by either the facts or the law.”

Para 264: “Also disconcerting is the fact that the Public Protector’s released the Report to the media, before the Report was made available to Minister Gordhan. Releasing the Report which contained various adverse findings against Minister Gordhan and which had enormous personal and political impact, to the media before releasing it to the person (Minister Gordhan) affected by the Report, is not in keeping with the high standards required by her office.”

Para 289: “What we have considered as indicative of bias is the general manner in which the Public Protector conducted herself in conducting the investigation and her interaction with the individuals subject to her investigation that indicates bias on her part.”

Para 293: “The Public Protector’s bias against Mr Gordhan and Mr Pillay is manifest. Having regard to the manner in which the Public Protector simply dismissed out of hand and completely ignored and irrationally discarded hard facts and clear evidence, it is clear that she approached her investigation with a preconceived notion, determined to make adverse findings against Minister Gordhan and Mr Pillay, thereby promoting the false rogue unit narrative.”

Para 294: “She ignored the bulk of the evidence provided to her and only took into consideration allegations, however discredited and untested, that she believed supports the continuation of the rogue unit narrative and dismissed or ignored everything that proved the lawfulness of the unit in question.”

Para 295: “The Public Protector has in our view not undertaken, as is required by her office, a fair and credible investigation and an open-minded consideration of the extensive body of evidence that was placed before her in order to confirm the truth.”

Government Employees Medical Scheme and Others v Public Protector of the Republic of South Africa and Others 2021 (2) SA 114 (SCA)

This matter concerned an investigation by the Office of the Public Protector into the conduct of the Government Employees Medical Scheme. The complaint related to the manner in which GEMS in dealt with an individual complaint. The complainant alleged that GEMS failed to apply its rules in adjudicating his claim. The issues before the High Court turned on whether the Office of the Public Protector had the requisite jurisdiction to investigate the complaint in the circumstances. The Supreme Court of Appeal found against the Public Protector and held that she misconceived her constitutional and statutory powers.

Para 35: “It is manifest that the Public Protector’s stubborn and irrational insistence on continuing with her investigation could hold no benefit for the public at large, or for that matter even Mr Ngwato himself. In other words, it is not aimed at, nor is there any need to protect the public against the conduct which informed the complaint.”

Para 43: “[T]he Public Protector appeared not to appreciate the extent to which the appellants’ constitutional rights were being affected.”

Para 50: “[N]ot only did the Public Protector misconceive her powers, but in many respects her approach is regrettable. The Constitutional Court has emphasised that the Public Protector is bound, in terms of s 195(1) of the Constitution, by the basic values and principles governing public administration, including, amongst others: (a) a high standard of professional ethics; (b) the constitutional imperative to use resources efficiently, economically and effectively; (c) accountability; and, (d) the constitutional imperative to foster transparency by providing the public with timely, accessible and accurate information. In that, it seems to me, the Public Protector has failed.”

1 Adv Mpofu’s opening remarks to the Committee on 11 July 2022 can be accessed here. The remarks about the binding effect of judicial findings were made from 2:22:15.

2 The full motion can be read here.

3 Some of the adverse findings made by the courts in judgments relevant to the section 194 inquiry can be read in the table at the end of this brief.

4 Rule129AD of the Rules of the National Assembly for the Rules for the Removal of Office-Bearers in Institutions Supporting Constitutional Democracy (“Rules”). The rules can be accessed here.

5 Paragraph 4 of the Draft Terms of Reference in respect of the section 194 inquiry into the removal of the Public Protector, Adv B Mkhwebane. The terms of reference can be accessed here.

6 The Rules define ‘incompetence’ as “a demonstrated and sustained lack of knowledge to carry out and ability or skill to perform, his or her duties effectively and efficiently” and ‘misconduct’ as “the intentional or gross negligent failure to meet the standard of behavior or conduct expected of a holder of a public office”.

7 Paragraph 61 of Ms Bawa’s opening remarks. The remarks can be read here.

8 Economic Freedom Fighters and Others v Speaker of the National Assembly and Another; Democratic Alliance v Speaker of the National Assembly and Another 2016 (3) SA 580 (CC) (EFF 1)

9 EFF 1 at para 12.

10 EFF 1 at paras 98-99.

11 Economic Freedom Fighters and Others v Speaker of the National Assembly and Another 2018 (2) SA 571 (CC) (EFF 2). The judgment of Zondo DCJ is a minority judgment, however, the minority and majority judgments did not differ on whether the National Assembly can alter or second-guess court judgments.

12 EFF 2 at para 111.