Address by the Public Protector Adv. Busisiwe Mkhwebane during the launch of the South African Women Lawyers Association (SAWLA) Student Chapter at University of South Africa in Pretoria on Saturday, March 19, 2022

Date published: 
Saturday, 19 March, 2022
Address by the Public Protector Adv. Busisiwe Mkhwebane during the launch of the South African Women Lawyers Association (SAWLA) Student Chapter at University of South Africa, Sunnyside Campus in Pretoria on Saturday, March 19, 2022.
 
Programme Director
President of SAWLA, Ms Nomaswazi Mndawe;
The rest of the SAWLA Leadership present;
Members of SAWLA, including the Student Chapter;
Ladies and gentlemen;
 
Good morning!
 
I wish to thank the South African Women Lawyers Association (SAWLA) Student Chapter for inviting my office to take part in this important event.
 
This launch marks a critical step in the journey that began 16 years ago when former Justice Minister Ms Brigitte Mabandla and a group of women lawyers put heads together to form an association that was going to put issues of woman legal minds front and centre of the national agenda. 
 
The historical issues of the empowerment of women lawyers, the articulation of their interests, transformation of the legal services sector and, in particular, women leading fearlessly — a theme you want time to focus my input on — remain ever so pertinent matters in our country. Recent history in respect of leadership changes in the upper echelons of our judicial arm of government attest to this. 
 
I am passionate about issues concerning the empowerment and advancement of women in the legal sector and elsewhere in society. This is why I agreed without hesitation to participate in the launch  when Ms Nomagugu Mahlangu reached out to me early in February. 
 
The bulk of staff of the institution I lead, the Public Protector South Africa, are lawyers. I therefore see you as a critical part of our stakeholder network to whom we should be accessible as envisaged in section 182(4) of the Constitution.
 
It may be worth your while for me to start with who we are as the PPSA. I will accordingly deal briefly with the institution’s genesis, its anatomy, its powers, the source of those powers and what, in our view, was the thought behind its establishment. In doing so, I will also paint a picture of the leadership challenges that one has had to grapple with as one set out to steer this institution in fulfilment of its constitutional mandate.
 
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.
 
While 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 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 PPSA 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 complied 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 [29].”
 
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, which celebrates, this year, 25 years of being in force, 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 in a similar fashion to 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 — the little-known but critical aspect of our mandate, which I referred to earlier. 
 
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. Then Chief Justice, Mogoeng Mogoeng 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.
 
Now in its sixth year of implementation, the vision has proved to be quite a success. Out of around 70 000 cases that have passed through our hands thus far, we have decided around 54 000.
 
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 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 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. These problems emanate mostly from investigations we conduct under the Executive Members Ethics Act, 1998. 
 
When this law was passed, the intention 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 this law, the Public Protector is the sole enforcer of Executive Ethics. This has placed my office in the crossfire between political parties in the legislative arm of government who are involved in a fierce competition for public office and 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. This places us in harm’s way.
 
We get accused of being “hired guns” and players in the political arena or labeled “RET forces” 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.
 
They carry on even when no less than the Constitutional Court warn 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 that I referred to earlier. In that sense, that ruling was 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 measure 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 police perform, you check if they are succeeding in the fight against crime; not if they are winning the civil claims lodged against them.
 
Sadly, when it comes to the Public Protector, an odd yardstick is used. Critics 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 less than 20 reports of ours which have been set aside and the eight that we have successfully defended — a fraction of the around 70 000 matters that have passed through our hands.
 
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.
 
There are many more challenges, including the stumbling blocks we face in the courts when we litigate. That is a story for another day. I suppose, from the issues I have dealt with, you can appreciate the challenges that one has had to contend with as a woman leader of a legal organisation.
 
In fact, this event could not have come at a worst time for the PPSA. We announced on Thursday night that I received a letter from the President in which he gave me 10 working days within which I must provide him with reasons why I should not be suspended. This followed a letter he supposedly received from Speaker of the National Assembly the day before, a copy of which I was not favoured with. I learned about the Speaker’s letter in the media and in the President’s letter. Only yesterday was the Speaker’s correspondence to the President received yesterday from the Presidency. 
 
My legal representative yesterday wrote to the Speaker not my displeasure at how things have turned out in respect of how the matter was handled but also to raise my concerns about the continued unfairness of the impeachment process and the case against, which is entirely based on the challenges I have outlined above. 
 
One of the points we highlight in the letter to the Speaker, which was dispatched to her office yesterday, is the clear conflict in the President who is and has been the subject of investigations I am leading — a conflict the President himself has admitted to under oath during litigation — pondering the idea of suspending me. 
 
We also raise the question why Parliament won’t hold back until the rescission application that is before the Constitutional Court is disposed of. Why does Parliament appear to be bent on riding roughshod over this process despite its own rules prohibiting the discussion of matters that are sub judice? 
 
Once again we appeal to the Speaker to be even-handed, Independent and impartial in executing her duties. These issues can and must be resolved amicably. There is absolutely no need to rush as haste tends to involve trampling on other people’s rights. That said, I am still consulting with the legal team on any eventuality, and on the response to the President’s letter.
 
Coming back to SAWLA, the association was founded in the 2006 as I noted earlier as a non-profit, non-political networking forum for women lawyers to promote access to justice, advocacy for the advancement of women, professional and leadership development and contribution or national and international dialogue. 
 
I must say that we miss SAWLA’s voice on the issues facing women lawyers in the country. These include the skewed briefing patterns, which remain tilted in favour of white firms to the exclusion and marginalisation of black legal practitioners, particularly women.
 
I remain ever so passionate about finding solutions to the problems that confront women. I must say, though, that my only gripe with activism where women empowerment and gender equality issues are concerned is that we tend to confine such critical matters to three months year in and year out. That is the International Women’s Day in March, National Women’s Day in August and November when we launch the 16 Days of Activism for No Violence against Women and Children.
 
I am of the strong view that the plight of women  should be a subject of robust discussion throughout the year and should not be limited to  these three months because it is that important an issue.
 
As women, we do not get violated only in those three months. We are not overlooked for employment positions of influence and other opportunities only in those three months. These and other manifestations of gender discrimination rear their ugly heads all year round and should be confronted there and then.
 
The question is: why then do we tend to wait until the third, eighth and 11th months of the year to interrogate these  thorny issues? 
 
It is well and good that in 1994 government saw it fit to set aside 09 August as a day during which we remember those that came before us and showed us, in 1956, how to confront the challenges facing us. 
 
But that does not mean women’s issues must take a backseat at any other time of the year. I remain hopeful though that we will get to a point where our plight deserves a mention in January, February, March and every other month of the year. 
 
I think that would make many of our Guardian Angels—among them Mama Winnie Madikizela-Mandela-Mandela, Mama Lillian Ngoyi, Mama Ruth Segomotsi Mompati, Mama Adelaide Tambo, Mama Albertina Sisulu, among many other—very proud to call us their daughters.
 
We owe it to them and future generations of women to pick up the spear to fearlessly and resiliently carry on with the struggle for the real emancipation of women. 
 
Some of you will one day occupy positions such as that of Public Protector, positions which will expose you to political, civil society, judicial and media hostility. 
 
When you are in that position, defend yourself to the bitter end. As you do, be prepared to lose, to be vilified, to turned into a laughing stock and even to be bankrupted. I am. 
 
My office remains committed to empowering black and female lawyers. Most of our litigation is done by black attorneys, who brief black advocates. And the legal teams do include women. 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, female lawyers.
 
I wish you all of the best and you have my full support. 
 
Thank you.