Address by the Public Protector Adv. Busisiwe Mkhwebane during the General Meeting of the Limpopo Black Lawyers Association in Tzaneen on Saturday, May 08, 2021.
Address by the Public Protector Adv. Busisiwe Mkhwebane during the General Meeting of the Limpopo Black Lawyers Association in Tzaneen on Saturday, May 08, 2021.
Leadership of the Limpopo BLA;
Members of the Limpopo BLA;
Members of the media;
Ladies and gentlemen;
I wish to thank you the Limpopo Black Lawyers Association for deeming it fit to have me address the Association’s sacrosanct gathering.
Most importantly, I am honoured to have been considered for this address by such a gallant organisation of lawyers. The basis for your organisation’s founding in the 70s still serves as an inspiration to some of us as black lawyers.
I must say I feel at home in this province for many reasons, one of which is that I obtained my BProc and LLB Degrees here at what is known today as the University of Limpopo. Back in our time it was called Turfloop University – a powerhouse indeed if you think of black consciousness activists such as Onkgopotse Tiro.
I am pleased to engage you on the significance of the Public Protector South Africa in promoting the rule of law and constitutional democracy in the country. This is indeed an important subject matter given the challenges that the institution finds itself in and the issues surrounding it at this point in time.
The starting point should be its genesis, its anatomy, its powers, the source of those powers and what, in our view, was the thought behind its establishment.
The Public Protector is a descendant of a more than 200 years old institution founded in Scandinavia as an innovation created to impact access to justice and public accountability.
Although some scholars opine that such institutions always existed informally in other jurisdictions, including here in Africa, it wasn’t until the establishment of the Ombudsman in Sweden in 1809 that the idea formally gained traction across the globe.
It was always meant to provide a quick and easy access to justice for the ordinary man or woman on the street while exacting accountability on public officials as an addition to traditional checks and balances such as the courts, the legislature and the executive.
Specific to its orientation as a means to vindicate rights with a view to entrenching access to justice, it takes the character of a quasi-judicial avenue which deliberately lacks the sophistication that has become the hallmark of the courts but commands the power to be just as effective in respect of levelling the playing field between the haves and the have-nots.
The first such formal institution in Africa was founded in Tanzania in 1966. South Africa followed suit with the Office of the Ombudsman in 1991. That office had succeeded a similar institution established in the 70s under the name, the Office of the Advocate-General.
In 1992, as the winds of change swept through our country, today’s governing party, the ANC, proposed in a document titled Ready to Govern, that:
“A full-time independent office of the Ombud should be created, with wide powers to investigate complaints against members of the public service and other holders of public office and to investigate allegations of corruption and abuse of their power, rudeness and maladministration”.
The document also provided that the Ombud shall have the power to provide adequate remedies and be appointed by and answerable to Parliament.
In an address at Soochow University in Taiwan in 1993, the late former President Nelson Mandela, who was not yet President at the time, announced that the ANC had, in addition to substantive provision of a Bill of Rights, proposed further mechanisms to develop and increase confidence in the way rights were to be handled. These mechanisms included “an Ombud, a Defender of Citizens, with comprehensive powers”.
That same year, the interim Constitution came into force, Chapter 8 of which provided for the establishment of the Public Protector, whose powers were similar to those of the Office of the Ombudsman of 1991.
In the following year, the democratic Parliament passed the Public Protector Act 23 of 1994, which gave effect to the provisions of section 110 to 114, under Chapter 8 of the Interim Constitution.
In 1995, the Public Protector South Africa opened its doors to the public for the first time. Meanwhile, work was underway to finalise the Constitution that is in force today. For this Constitution to come into force, the Constitutional Court had to certify that the full text of the document complies with a list of Constitutional Principles set out in Schedule 4 of the Interim Constitution.
Initially, the Court declined to certify the text, ruling that:
“The independent and impartiality of the Public Protector will be vital to ensuring effective, accountable and responsible government. The office inherently entails investigation of sensitive and potentially embarrassing affairs of government. It is [the Court’s] view that the provisions governing removal of the Public Protector from office do not meet the standard demanded by Constitution Principle .”
The Constitutional Assembly had to go back to the drawing board, revise the text and take it back to the Court for certification. In the second certification judgment, the Court noted the enhancement of the independence of the Public Protector and the Auditor-General in the amended text and confirmed the adequacy of these amendments.
The Public Protector is established in terms of section 181 of that Constitution as an independent institution that is only subject to the Constitution and the law; is impartial and must exercise its powers and perform its functions without fear, favour or prejudice.
The Constitution enjoins other organs of state to support and assist the Public Protector to ensure its independence, impartiality, dignity and effectiveness. One wonders if, on the basis of what you have observed, you get the sense that organs of state fulfil this role.
The Constitution further prohibits interference by any person or organ of state with the functioning of the Public Protector. Again, one should ask whether you are of the view that no person or organs of state interfere with the functioning of this institution.
I must hasten to say that these provisions, which are to be found in section 181(2)-(4), read the same way as those found in section 165 (2)-(4), which are applicable to the courts. This says to us, you cannot do to Chapter 9 institutions that which you know cannot be done to the courts.
Often when we say this, we are accused of trying to compare ourselves to the courts or judges. We did not write the Constitution. We merely read, interpret and apply it.
The office draws its investigative, reporting and remedial powers from section 182 of the Constitution and has additional powers and functions as regulated by National Legislation such as the Public Protector Act, the Executive Members Ethics Act, the Prevention and Combatting of Corrupt Activities Act and the Protected Disclosures Act, among others.
As you can probably tell from this legal framework, we have a very broad jurisdiction, which covers “all state affairs”, the “public administration” and “all spheres of government”. Expressly, excluded from this ambit are “court decisions”.
Perhaps in recognition of the reality that not everyone is going to be able to access justice via the courts, the Constitution enjoins the Public Protector to be accessible to all persons and communities.
Leveller of the playing field
In the Nkandla judgment, the Constitutional Court underscores this point succinctly. In that ruling, which is formally known as the EFF v Speaker of the National Assembly case, it was acknowledged that litigation tends to be the preserve of the rich.
This is to say that the average person would not have the financial muscle to afford and pay lawyer fees in order to take the state to court when wronged by the system. The state on the other hand has all the money in the world to defend its actions, however unreasonable and unjust.
The court saw the Public Protector as an ideal institution to bridge that gap. The Chief Justice explained as follows:
“The Public Protector is … one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance.
“The tentacles of poverty run far, wide and deep in our nation. Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average citizen. For this reason, the fathers and mothers of our Constitution conceived of a way to give even to the poor and marginalised a voice, and teeth that would bite corruption and abuse excruciatingly.
“And that is the Public Protector. She is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath that impropriety and corruption by government officials are.”
The notion of a Public Protector as a leveller of the playing field between those who have and those who do not aligned with my own vision for the institution. When I took over in October 2016, my dream was to take the services of the institution to grassroots communities.
Together with the team, we crystalized this dream in what we call the Public Protector Vision 2023. It is an eight-pillared blueprint, through which we seek to broaden access to our services, use vernacular languages in our engagements with the public, expand our footprint and leverage stakeholder relations, concluding agreements in this regard in Memoranda of Understanding.
In addition, we seek project the image of a safe haven for the marginalised, empower people to be familiar with their rights and entitlements, encourage the establishment of in-house complaints handling units across the public administration and inspire people to be their own liberators.
How we have fared
Now in its fifth year of implementation, the vision has proved to be quite a success. Out of nearly 67 000 cases that have passed through our hands thus far, we have decided almost 53 000.
But the satisfaction and fulfilment is more in the quality than it is in the quantity. In this regard, we have changed thousands upon thousands of lives for the better. From the latest crop of cases, here are a few which paint a picture of the lives we have impacted.
- We recently helped a Gauteng civil servant regain 11 of her 34 years of pensionable service, which she was told by the Government Pension Administration Agency that they were “not traceable”. Had it not been for our intervention, this person would have retired on a much less pension pay-out than she was entitled to.
- We recently helped a Gauteng family find some of the answers regarding what happened to their relative, who passed on at Chris Hani Baragwanath Hospital in Soweto eight years ago. The hospital lost the corpse and informed the family of the man's passing 4 years after the fact.
- We successfully had thousands of goods-carrying Toyota Quantum panel vans, which were illegally converted into passenger-carrying minibus taxis, removed from public roads, where they were used to transport the public at a huge risk to the lives of commuters.
- We helped 46 households of Ikemeleng informal settlement in Roodepoort, who were forcefully removed from a farm they had called home and dumped without services in makeshift tents on a dustbowl surrounded by white suburbia. Now they have dignified roofs over the heads and services.
- We helped a distraught Western Cape mother to receive over R300 000 in arrear and future child maintenance, giving effect to several court orders which had directed that the defaulting father’s pension benefits be attached for this purpose. Prior to our intervention, the orders had seemingly been ignored.
- We helped up to seven Limpopo households get reconnected to the municipal water supply network, bringing an end to a 5-year period during which their taps ran dry after a government road construction project interfered with the underground pipework supplying the homesteads.
- We saw to it that water supply to the house of an indigent 98-year-old Limpopo granny is restored two months after she was cut off by the Musina Local Municipality on the basis of unsubstantiated suspicions that her water meter had been tampered with.
We finalised these and many more cases under difficult circumstances. You will note that none of the cases I cited involve the so-called “high profile” matters, which have been the source of our troubles.
The political crossfire
For instance, when Parliament passed the Executive Members’ Ethics Act in 1998, the intention was pure. It was to give effect to sections 96 and 136 of the Constitution in terms of which the ethical conduct of the executive was to be kept in check. Sadly, there have been unintended consequences.
In terms of that law, the Public Protector is the sole enforcer of Executive Ethics. This has placed my office in the crossfire of the contest for public office. Let me explain it this way. There are two types of MPs. Those on opposition benches and those on the governing party side. Both vie for public office. They campaign fiercely to influence public policy.
This fierce competition does not stop the minute the IEC announces the election results and declares the polls free and fair. It continues in different forms right up to the next elections.
One of the ways through which the competition is sustained is the opposition’s punching of holes in the governance approach of the government of the day, the idea being to discredit the incumbent administration in the eyes of the electorate with the hope that voters will change their minds, come the next elections.
Among the tactics employed in this regard is to point out suspected governance lapses and report such incidences to state institutions charged with rooting out such maladies as corruption and ethical misconduct.
Ideally, there shouldn’t be anything wrong with this because that is how the system was designed to function. However, as I say, there have been a lot of unintended consequences. One of them is that accountability institutions such as my office get thrust right into the center of the competition for the vote of the public. It places us in harm’s way.
We get accused of being “hired guns” and players in the political arena by the very same executive and their supporters when we are merely doing our work. It gets worse when the same executives are media and civil society darlings. This gives them a free reign to carry on unabated, with impunity.
This state of affairs is irreconcilable with the point I raised earlier that sections 165 and 181 of the Constitution, which apply to the courts and Chapter 9 institutions respectively are phrased in a similar fashion. Again, this prompts the question: what would be the reaction of the so-called critical voices of society if a minister were to publicly label a judge a “hired gun”?
You just have to look at the reaction to the recent heated Judicial Service Commission interviews to guess what the likely reaction would have been. But the same critical voices keep quiet or endorse contemptuous vitriol hurled at the Public Protector, sometimes depending on who the incumbent is.
There is a word for that. It is called hypocrisy. They carry on even when no less than the Constitutional Court warns that: “To mount a bad faith attack on [the Public Protector’s office] would surely work to undermine the constitutional project of the republic”.
Sometimes one wishes MPs would just report the ethical misconduct complaints lodged with my office under the Executive Members’ Ethics Act to the Joint Committee on Ethics in Parliament just so we can be spared the baseless criticism that we are targeting this or that Minister or the President.
We are unfairly criticised of being in cahoots with so-called factions of the governing party. It is not within our personal knowledge as to which ANC politician belongs to which faction or whether those factions do exist. Like many other consumers of news, we learn from the media that so and so belongs to this or that faction.
But in a few of the investigations that we have undertaken since October 2016, we have made adverse findings across the purported factional divide where evidence of wrongdoing existed.
To mention but a few, we made adverse findings against former Cabinet Minsters Lynne Brown, Des van Rooyen and Malusi Gigaba and current members of the executive President Cyril Ramaphosa, Pravin Gordhan, and Fikile Mbalula. The same goes for the erstwhile Premier and Agriculture MEC in the Free State Ace Magashule and Mosebenzi Zwane respectively.
In fact, Brown and Van Rooyen were eventually relieved of their positions as ministers by President Cyril Ramaphosa purely on the strength of our findings. This much was confirmed to us in two separate letters from the presidency.
Another stumbling block that we have had to grapple with is the clearly wrong notion that when any of our report is taken on judicial review, let alone set aside, we are incompetent. The worst part is when statistics of our court losses are tallied up and used as a yardstick to gauge our competence.
Let me say that we are thankful that the Constitutional Court clarified our powers and functions in the Nkandla judgment I referred to earlier. In that sense, that ruling was a gift. But it has also become a curse. It has inadvertently got us bogged down in litigation, unfairly criticized for expenditure on legal fees and leading to this new and misguided yardstick to gauge our performance.
We do not choose to go to court. We are taken to court precisely because the Constitutional Court told people that if they are unhappy with our findings they should challenge them in court. This marked a departure from the old practice of merely ignoring the findings and rendering the Public Protector toothless.
We do not oppose any and every case; only those which are likely to have a negative impact on the implementation of our mandate. And when we do go to court, we are not fighting the applicants. We merely participate to assist the court to understand what informed our decisions.
Regarding alleged incompetence, the assessment of the performance of any other organisation is linked to its purpose for existence. For instance, if you want to establish if Eskom performs, you check if they are able to keep the lights on, not if they have lost any cases in court. Similarly, if you wish to establish if the SAPS performs, you check if they are succeeding in ridding the streets of crime; not if they are winning the civil claims lodged against them.
Sadly, when it comes to the Public Protector, people lose all sense of reason. They don’t establish if we investigate, report on and remedy alleged and suspected improper conduct in state affairs as envisaged in section 182. Instead, they ask “how many cases have you won or lost in court?” For them, it all boils down to those 14 cases of ours which have been set aside and the eight that we have successfully defended. Fourteen cases out of nearly 67 000.
In my capacity as the President of the African Ombudsman and Mediators Association, I have engaged with many of my colleagues across Africa and other parts of the world. Some of them tell me that they wished they had powers, like we do here at home, to investigate the executive and to issue binding remedial action, which is only reviewable by the courts.
I always tell them, “be careful what you wish for”, because I truly believe they are better off without such powers. They are better off as classical ombudsman institutions which do not have the powers to investigate the executive or make decisions akin to court orders. They should be happy that they merely deal with service delivery issues and make recommendations, which can be ignored at will. Anything more than that is asking for trouble. We have learned that the hard way.
We respect the courts and recognize them as institutions in whom judicial authority is vested. However, we have disagreed, with the utmost respect, with how some of the matters involving us have been decided.
In the EFF v Speaker of the National Assembly, the Constitutional Court held that the remedial action dispensed by the Public Protector is binding until or unless set aside by a court of law. The court went further to say that the Public Protector can direct the manner of implantation of the remedial action and that compliance with it was not optional.
In the State of Capture report judgment, the High Court held that the Public Protector can direct a state functionary to exercise powers which are only within the exclusive purview of that functionary.
The court thus concluded that the Public Protector can direct the President to establish a commission of inquiry. In the report that led to the judgment, the Public Protector had directed the President, Parliament and the NPA to take certain actions. Furthermore, the court refused to grant an interdict to the President citing that granting such an order will result in the unwarranted interference with an exercise of a statutory power.
In concluding that the President must establish the commission of inquiry, the court took judicial notice of the financial constraints facing the office of the Public Protector and status that she can in law abandon an investigation over lack of resources.
And yet, in 2017, following my arrival, it appears the courts have drifted away from these principles. The Public Protector now cannot direct other functionaries such as the President and the Hawks to take certain steps.
In the Vrede matter, the court ignored the simple meaning of a “provisional report”, which is that it is a draft or a working document, and went on to lambaste Public Protector for ‘interfering’ with a provisional report.
Yet, in DAFF vs PPSA, the court held that the Public Protector can choose the method of her investigation and can deviate from her provisional findings.
In EFF v the Speaker of the National Assembly, the court stated the importance of the Public Protector’s constitutional mandate and the need for protection of the office’s powers in order for its office to be effective. However, in 2019, three interim orders were obtained against the Public Protector.
The Public Protector was lambasted for even exercising her constitutional right to litigate such as to oppose an interim interdict. Strangely, the former Public Protector opposed an urgent interdict launched by both the former President and Mr Des Van Rooyen. She was not criticized for this because the courts then understood that she had the right to defend her reports and a principle of law.
In the Public Protector vs Reserve Bank matter, Mogoeng Mogoeng CJ stated the chilling effect of granting personal costs against the Public Protector. He stated categorically that the High Court order was meant to bankrupt the Public Protector. He found that the High Court ignored the requirements for personal costs, despite these having already been laid down by the Constitutional Court in the SASSA matter. These requirements include gross negligence, dishonesty, fraudulent conduct and bad faith.
The Chief Justice stated that the reasoning advanced by the court for bad faith and excess of bounds of indemnity was flawed and amounted to gross miscarriage of justice. He concluded that the PP was simply pursuing a complaint which two investigations have found wrongdoing in the lifeboat. She had nothing to benefit personally from it, but she mulcted with costs in her personal capacity, at punitive scale.
Then there has been a series of personal cost orders against me, which I have said and still maintain that they only serve the purpose of instilling fear in the Public Protector and therefore interfere with our independence. Incidentally, the Constitutional Court noted the development and ruled as follows in the Public Protector vs SARS case:
“Courts must be weary not to fall into the trap of thinking that the Public Protector is fair game for automatic personal costs awards, considering the chilling effect these orders may have on the exercise of the Public Protector’s powers, including litigation where necessary.
“Axiomatically the Public Protector’s office is more important than any incumbent. Needless to say, as the judiciary, we must not be guilty of contributing to the weakening that office by making indefensible personal cost awards. You weaken that office, you weaken our constitutional democracy. Its potency, its attractiveness to those it must serve, its effectiveness to deliver on the constitutional mandate must be preserved for posterity.”
Appeal to BLA
As I draw to my conclusion, I have a message for the BLA.
Your organisation was founded in the 70s to fight against racial segregation of black lawyers with regards to Group Areas Act, which precluded people of colour from conducting business in whites-only areas. Although such apartheid legislation has been eradicated from our legal framework, its legacy still remains.
The perennial challenge the BLA has been preoccupied with is the skewed briefing patterns, which, despite the take-over of political power in 1994, remain tilted in favour of white firms to the exclusion and marginalisation of black legal practitioners.
This shows that the BLA’s initial founding premise which can be summed up as the struggle for civil liberties (i.e the right to conduct business anywhere you want) was not enough in dealing a blow to the grievance which has become even more clearer with the passage of time since the dawn of democracy.
My office remains committed to empowering black lawyers. Most of our litigation is done by black attorneys, who brief black advocates. They deal with all these matters in which we are labelled “incompetent”. One wonders if, by extension, these attorneys and advocates are also incompetent. We wonder how that makes you feel as black lawyers.
My appeal to you is that you strengthen the BLA institute and regularly provide courses to keep your members ahead of the curve in respect of legal practice. This is important becomes sometimes some of your members fail us as clients with things like late filing of papers, which is to our detriment.
Above all else, we miss your critical voice in the public discourse concerning the challenges facing our legal system. We would like to see opinion pieces, legal articles, media statements and presence on social media.
In conclusion, a lot of the time, I am asked the question: How do you cope? I always tell the enquirers that this is not mine but God’s fight. But that gets some people hot under the collar. It appears they don’t know that, like everybody else, I have a constitutional right to freedom of religion.
The persecution directed at me tends to have an effect on staff too, who are essentially the people who do all the spade work in all these investigations. Of course, as the person with whom the buck stops, I face the criticism alone but the kind of things that are said have the confidence-killer effect on investigators.
I always relate, to staff, the story of an old man who was determined to summit Everest, come what may. As he set off up the mountain, everybody else was going in the opposite direction. All those people pleaded with the old man to turn back, advising that it was dangerous to ascend the mountain as there were strong winds and avalanche.
As the story goes, the old man smiled, ignored the advice and carried on with his journey up the mountain and eventually reached the pinnacle. On his way back to the foot of the mountain, he found all of those people who had taken a dim view of his journey up the mountain waiting for him. Next to them was the old man’s son.
As they jostled to ask the old man how he managed to reach the summit despite the hostile whether, the old man’s son told them: “My father is deaf!”
There is an important lesson to draw from this story. It is that sometimes, to reach your goal, you have got to block off the noise and keep marching. My goal is taking the services of my office to the grassroots and I shall not be deterred.