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MAHLODI SAM MUOFHE: The Public Protector must be beyond reproach

OPINION

On Monday the Constitutional Court held that Public Protector Busisiwe Mkhwebane must pay the costs out of her own pocket for the protracted litigation in the matter between her and the SA Reserve Bank and Absa/Bankorp.

The Constitutional Court upheld the High Court's finding that the Public Protector acted in bad faith and agreed with the High Court that she exceeded the bounds of her potential indemnification under the Public Protector Act.

"The Public Protector put forward a number of falsehoods in the cause of litigation, including misrepresenting under oath before the High Court, that the economic analysis that underpinned the final report was based on expert economic advice, whereas this was false as the report was not based on expert economic advice."

It isn't collegial to opine on the behaviour of a colleague in the same profession. However, I hold that perhaps as colleagues in the same profession, we owe it to ourselves to critique ourselves privately when we meet, but if circumstances so demand, we should do so openly with the hope that we will learn from our mistakes.

Since assuming office, our current Public Protector Advocate Busisiwe Mkhwebane has had the misfortune of getting some of her reports and associated remedial actions set aside by our courts on review. By any stretch of imagination, this does not bode well for the integrity and image of this critical Chapter Nine institution. This institution was set up to strengthen our constitutional democracy.

It must, I submit, pain our High Courts generally and in particular our apex court, the Constitutional Court, to find themselves put in a position where they have to make adverse findings against our Public Protector. The powers and functions of the Public Protector are succinctly put in the Public Protector Act and further emphasised in the Constitution of the Republic of South Africa.

Were Mkhwebane to simply stick to these acts and other enabling acts to fulfill her duties, the purpose and import of our Chapter Nine institutions - which we so dearly need to strengthen our democracy - would be greatly enhanced. Our judicial system in the democratic dispensation recognises that a lower court can err at times in its application of the law during its adjudicative process. To cure the error of the lower court, a higher court - the highest court in criminal matters, the Supreme Court of Appeal (SCA ) - or our apex court on constitutional matters - the ConCourt - on appeal or review of any matter may partially or wholly set aside a decision which was erroneously arrived at by a lower court.

Our Public Protector’s reports and remedial actions are subject to these review processes by litigants whose rights would have been adversely impacted upon by the Public Protector’s decision.

Our Constitution enjoins our Public Protector to investigate matters brought before her clinically and prudently to ensure that instead of adversely tampering with the rights of those she would have investigated, her final reports and remedial actions must of necessity pass legal constitutional muster. Failure to pass this test by our Public Protector achieves the negative unintended results which are inconsistent with the spirit and purpose of our Constitution.

It was not without thought that we crafted the Chapter Nine institutions in our Constitution. We had recognised the injustices of the past especially; those which were committed against vulnerable people who could not easily access the doors of equitable justice. Some of our people were sentenced to death for fighting to liberate our country from the past injustices of the apartheid regime.

Anyone occupying a leadership position in any of our Chapter Nine institutions must thus know that she or he occupies a position of trust. The rest of the over 55 million South Africans rely largely on her/his objective judgment when releasing her/his report and remedial action.

Mkhwebane owes South Africans absolute fiduciary duties. We expect her to execute her duties without fear or favour so that her decisions can indeed strengthen our democracy. The majority decision delivered by our ConCourt Justice Sisi Khampepe in this matter is a difficult pill to swallow for me, and perhaps for other members of the legal profession specifically, and for broader South African communities as well.

The judgment unequivocally told us that our Public Protector - crudely put - lied in this matter. She misled South Africans. For our apex court to pronounce that our Public Protector proffered several falsehoods in her investigation is something I hope our Public Protector is - or should be - seriously concerned about. The holder of this position, in terms of our Constitution, is someone whose integrity shouldn’t be doubted, in particular by our ConCourt. The Public Protector’s behaviour must be beyond reproach. Her decisions or reports must be distinctly clear and untainted.

As Khampepe delivered the majority ConCourt decision against our Public Protector, a chill went down my spine. I felt that our Public Protector was faced with a final costs order decision to pay from her own pocket. Courts by their nature seldom order that a party to any litigation, acting on behalf of any institution, in particular a public institution like the Public Protector's Office, should personally bear the costs. The costs in such litigation of necessity are usually borne by the said public entity. In this instance; the Public Protector has to pay 15% of the costs in her personal capacity.

Mkhwebane may want us to believe that this judgment ties not only her hands, but also the hands of her successors in the coming years when her term ends. I humbly submit that our Public Protector errs yet again in her comprehension of the ConCourt decision. I hope that her legal advisers on this one will advise her appropriately and interpret the ConCourt decision contextually to her.

The ConCourt costs order against her, in my humble opinion, is aimed at deterring her personally, not any future successor, from irrational decision making. Her bad faith conduct, as Khampepe so ordered, is a terrible indictment on her personally, not on her successors unless they too act in bad faith.

I genuinely hope that our Public Protector will learn from this judgment that she has to act in good faith when discharging her duties. Our Constitution directs her to do likewise; so that her decisions can strengthen our democracy. She must desist from litigating frivolously and vexatiously. The costs of any litigation, if she isn’t reminded by this personal costs order against her, will otherwise always be borne by South Africans through taxes.

Advocate Mahlodi Sam Muofhe is a human & fundamental rights activist.

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