In criticising the office of the Public Protector, let the facts and the law prevail

Published Date: 
Monday, 1 July, 2019

Amy Louise Wood, author of Lynching and Spectacle: Witnessing Racial Violence in America, defines lynching as a "premeditated extrajudicial killing by a group. It is most often used to characterize informal public executions by a mob in order to punish an alleged transgressor, or to intimidate a group. It can also be an extreme form of informal group social control, and it is often conducted with the display of a public spectacle for maximum intimidation."

Leshoaneng Mantjane's article, published in the City Press under the headline "Question Mkhwebane, not her office" last week, has succeeded in fulfilling this definition of the act of lynching. It is premeditated to lay the foundation for her execution, the strategy being to identify, isolate, impugn and destroy the intended victim.

The second aspect is to marshal a concoction of half-truths, innuendo and rumour to create sympathy for the course. This is to ensure that facts do not frustrate the campaign. In this regard Adv. Ngalwana SC, in a piece headlined "A Tale of Two Public Protectors: Separating Fact from Fiction", has observed that Adv. Mkhwebane "has virtually been burnt at the stake ... even by people who have not bothered to read her reports, relying instead on media reports or commentary as their only source of information for the contents of the Public Protector’s reports."

Mantjane attempts to isolate Adv. Mkhwebane from the institution she leads. This is to make her an easy prey. It is easy to fight an individual than to quarrel with an institution. The inconvenient truth is that the office of the Public Protector comprises an army of experienced investigators. These are functionaries that have the legal and investigative expertise necessary in investigating and addressing complaints. The attempt to isolate Adv. Mkhwebane from her office is both cowardly and dishonest.

In trying to isolate Adv. Mkhwebane from her office, Mantjane unwittingly insults the intelligence and professionalism of the men and women in the institution.

As with all lies, Mantjane provides no evidence of lack of independence or impartiality. But mob justice does not require such niceties. The victim is simply guilty by accusation.

As part of the strategy of marshalling half-truths, Mantjane invokes adverse commentary by the high court in the case of the Democratic Alliance versus the Public Protector. Mantjane dishonestly does not indicate that the case is being appealed. If he did he would have indicated that the high court's is not the last word on the subject.

Second, Mantjane and his fellow travellers fail to mention that the very judge that delivered the scathing comment - Judge Ronel Tolmay - was herself found wanting by none other than the Constitutional Court in the gun laws case, which was supposed to be one of her significant rulings.

Third, there is nothing earth shattering about a court judgment as rulings are subject to appeals. As Adv. Ngalwana SC points out, in their settling of disputes "where there is a difference of opinion as regards the proper interpretation and application of the law, even the high courts and the Supreme Court of Appeal err. That is what the Constitutional Court is there to put right – as the apex court."

We do not see the likes of Mantjane and company jumping on the rooftops asking for the removal of judges whose rulings have been overturned by superior courts. As a matter of fact, there have been instances where Adv. Mkhwebane's understanding of law prevailed at the Supreme Court of Appeal in cases that were taken for review.

As intimated above, Judge Tolmay's own ruling on gun laws was overturned by the apex court. Yet her judgment on Vrede, which is on appeal, is being used by the Public Protector's detractors, calling for her head. But such facts would be too much for those caught up in a mob-like frenzy. Mantjane is evidently dishonest and/or ignorant.

Fourth, Mantjane is not alone to harp on court decisions. But if truth be told, there are only two cases that Mkhwebane concluded that were overturned by the courts. She has appealed both. It is thus too early to pass judgment.

Perhaps the observation by Adv. Ngalwana SC could assist Mantjane in his observation that hardly ever mentioned in the wholesale attacks on Adv. Mkhwebane is that some of the investigations and reports that she has had to defend were done on her predecessor's watch. An example is the Venda Pensioners matter. "She has been attacked even on issues in relation to which Adv. Thuli Madonsela had made the same finding but was not attacked,” observed, Adv. Ngalwana SC.

Clearly, Mantjane's lack of familiarity with the functioning of the Public Protector and publicly available facts disqualifies him to cast aspersions on the competence or otherwise of the office of Public Protector and its incumbent.

Mantjane glaringly fails in his own advice that in handling disputes we "need to be guided by facts and the law."

He and fellow travellers may benefit from the following facts. Since her appointment on 15 October 2016, Adv. Mkhwebane has dealt with approximately 50 000 complaints, 34 271 of which have been concluded to the benefit of tens of thousands of people.

Adv. Mkhwebane has issued a total of 102 investigation reports. Only 30 of those reports have to date been the subject of court challenges. This means, more than 70 of her reports remain unchallenged in court. She successfully defended two and lost two while the rest are pending.

Lastly, the Public Protector's office has initiated very few investigations without complaints. Where executive ethics are concerned, she is she is obligated to investigate on receipt of a complaint. To this end, she has investigated a whole range of individuals across the political spectrum. This includes political figures such as the former Executive Mayor of Tshwane Solly Msimanga, former Premier Helen Zille, former Ministers Lynne Brown, Des van Rooyen and Malusi Gigaba.

The suggestion that she is partisan is thus without substance.