Conduct that can undermine objectivity transcends financial interests

Early September 2014, then Chairperson of the Independent Electoral Commission (IEC), Adv. Pansy Tlakula, announced her resignation from the election body she had served with distinction in varying roles for a period spanning well over a decade.

The announcement came barely a year after former Public Protector Adv. Thuli Madonsela issued an explosive 220-page investigation report, in which she made damning findings against Adv. Tlakula relating to the time she was IEC Accounting Officer.

Titled “Inappropriate Moves”, the report had followed a two-year probe into allegations of maladministration and corruption involving the procurement of the Riverside Office Park to accommodate IEC headquarters.

Among the key findings were that there existed an undisclosed and unmanaged conflict of interest between Adv. Tlakula’s responsibility to act in the best interests of the IEC as its Accounting Officer and her business relationship with Mr. Thaba Mufamadi.

Mr. Mufamadi was Chairman of Manaka Property Investments, the BEE partner and holder of a 20% stake in property developer, Abland, which had been awarded a contract to lease the Office Park building to accommodate IEC headquarters. He was also the Chairperson and director in Lehotsa Investment Holdings. Adv. Tlakula, too, was a director in Lehotsa Investment Holdings.

The Democratic Alliance was among the first of political parties to comment on Adv. Madonsela’s findings, calling for Adv. Tlakula’s suspension. “As head of the IEC, there should be no questions around her integrity or conduct,” party MP Manny de Freitas said.

In a statement, De Freitas said the DA would be writing to the Chairperson of the Portfolio Committee on Home Affairs, to whom the IEC accounted, to request an urgent meeting where the contents of the Public Protector’s report would be discussed.

Again, when Adv. Tlakula decided to step down from her position, the DA was leading the band of commentators. “She was heavily implicated in issues around the lease of a building for the IEC’s head office, a matter in which the Public Protector found maladministration,” party chairman James Selfe said, also in a statement. “We believe that Advocate Tlakula has done the right thing.”

For the purpose of this piece, it becomes critical to mention, at this juncture, that all of these statements were issued during Western Cape Premier Helen Zille’s reign as DA leader. She was at the helm between May 2007 and May 2015. Accordingly it would not be a stretch to conclude that the statement were released with her blessings.

Fast-forward to December 2018. A new Public Protector, Adv. Busisiwe Mkhwebane, is in office. Ms. Zille, though still in the DA, has made way for former party spokesman Mmusi Maimane and remains the Western Cape’s first citizen.

Adv. Mkhwebane releases an investigation report that is critical of Ms. Zille’s conduct. Like in Adv. Tlakula’s case, the issues center on conflict of interest. Essentially, Ms. Zille finds herself in hot water for influencing or appearing to have influenced a decision to have her son, Paul Maree’s company, Paper Video, utilise its software and educational resources through the use of state-owned computer tablets during revision workshops for a group of matrics during the October 2014 school recess.

Adv. Mkhwebane found that Ms. Zille intervened in the execution of a contract for the delivery of the tablets for use in public schools in the Western Cape in order to ensure that her son and his company had access to these tablets for the purpose of presenting revision workshops.

She also found that Ms. Zille exposed herself of a risk of conflict of interest between her official responsibilities and personal interests – the kind of conduct that is at odds with section 136(2) of the Constitution of the Republic and clause 2.3(f) of the Executive Code of Ethics.

“As a result of [Ms. Zille’s] involvement in the decision to escalate delivery [of the tablets], she directly and/or indirectly influenced the procurement of her son’s company’s services,” Adv. Mkhwebane’s report reads, in part.

It has been interesting to observe Ms. Zille’s reaction to these findings. She has tweeted up a storm and issued a statement not only rebutting Adv. Mkhwebane’s conclusions but also announcing a legal challenge of the report. Nothing wrong with that. She has also written extensively on the Daily Maverick news website about the matter in a piece headlined “An Insult to the Office of the Public Protector.” There is nothing untoward about that too as she is entitled to air her views on the findings.

However, I felt it would be remiss of the Public Protector’s office to let the article – in which Ms. Zille labels Adv. Mkhwebane’s report “ignorant of the law, impervious to logic and agenda-driven” and stresses that if the events that were the subject of our investigation were to happen all over again she would not change her approach – go unchallenged.

I will steer clear of the tired "spy" allegations, which the DA has to date failed spectacularly to prove. I will also sidestep the CIEX/South African Reserve Bank and the Colonial tweets matters as the two cases are currently before the Constitutional Court and the High Court, respectively.

As in the tweets and the media statement that followed Adv. Mkhwebane's report, Ms. Zille and her legion of supporters keep clinging to the none-issue that her son or his company did not derive any financial benefits from the project. I need not mention that Adv. Mkhwebane did not find that the son or his company pocketed anything from the venture.

Adv. Mkhwebane was unequivocal: “The fact that [Ms. Zille’s] son was willing to donate time and his company’s resources to the revision workshops free of charge is highly commendable and I am in no way asserting that he sought to gain any value from the exercise.”

She added that “the objective facts, however, make it extremely difficult to agree with the [Ms. Zille’s] contention that the exposure did not have the potential of adding value to the company’s profile or ability to attract customers based on endorsements or support from those students and parties who might have benefitted from the workshops conducted in October 2014.”

Incidentally, when pressed for answers on the Abland deal, Adv. Tlakula also argued that neither she nor Lehotsa Investments had had direct or indirect financial interest in Manaka Property Investments. Her line of reasoning was rejected.

“Such argument is, in fact, a source of concern,” Adv. Madonsela concluded at the time. “It would have been reasonably expected that the Chairperson of a body such as the Electoral Commission should understand that things that can undermine objectivity transcend financial interests.”

She held that the ideal way that Adv. Tlakula could have mitigated and managed the conflict would have been through a declaration of the relationship and recusal from the procurement process of the office space.

Along with a few others, including Nkandla and State of Capture, the IEC report was used as a touch stone in the Zille investigation for purposes of consistency when dealing with matters of a similar nature. We do this with every other investigation while also accepting that each case ought to be dealt with in line with its own merits.

For instance, in the State of Capture report (though observations rather than findings were made as the investigation could not be concluded), the Public Protector had to deal with, among other questions, whether former President Jacob Zuma and some members of his Cabinet improperly interfered in the relationship between banks and Gupta owned companies, thus giving preferential treatment to such companies on a matter that should have been handled by independent regulatory bodies.

Adv. Madonsela’s observation was that Cabinet appeared to have taken “an extraordinary and unprecedented step regarding intervention into what appears to be a dispute between a private company co-owned by the President’s friends and his son. This needs to be looked at in relation to a possible conflict of interest between the President as head of state and his private interest as a friend and father as envisaged under section 2.3(c) of the Executive Ethics Code …”

But what takes the cake in Ms. Zille's article is the supposed punchline in which the Premier says she will meet Adv. Mkhwebane in court “because I intend, once again, to join the growing band of people taking her reports on review”.

Accordingly, she attempts to suggest that taking reports of the Public Protector on review confirms her claims that the reports are “ignorant of the law, impervious to logic and agenda-driven”.

Far from it. The truth is, out of the nearly 70 reports that Adv. Mkhwebane has issued since taking the wheel in October 2016, only 14 have been taken on review and there hasn’t been an outcome yet. In any event, that an aggrieved party has gone to court hoping for a different decision does not equal ignorance of the law, irrationality or agenda on the part of the adjudicator responsible for the disputed decision. If that were the case, what then would we make of judges whose verdicts are appealed, sometimes successfully?

For the record, the rise in the number of review proceedings against Public Protector reports was prompted by the Constitutional Court judgement of March 2016, which clarified the extent of the Public Protector’s powers, particularly the binding nature of her remedial action.

By June 2016 – three months before Adv. Mkhwebane’s assumption of duty – court challenges had already been mounted on at least 11 Public Protector reports. And it was forecast as far back as then that the number was going to rise in the future.

Ms. Zille need not take my word for it. She should look no further than the Public Protector Annual Report for 2015/16, the year preceding Adv. Mkhwebane’s appointment. It was noted in the said report that: “The main challenge and risk the institution faces [owing to the Constitutional Court judgment] is an increasing number of state institutions taking the Public Protector’s reports on judicial review. As a result, the Public Protector is forced to defend these matters, resulting in a massive financial burden to the institution.”

By the way, Adv. Mkhwebane is not offended by Ms. Zille’s supposed “insults”. On the contrary, she is pleased with the level of public debate that her report has sparked on the important matter of the ethical conduct of people occupying positions of trust and the high standards such persons ought to be held to. In a small way, the national discourse has undoubtedly contributed to the ideal of strengthening constitutional democracy.

Oupa Segalwe
Acting Spokesperson
Public Protector South Africa