Public Protector responds to New Age editorial comment

I read with much surprise and sadness, an editorial piece in The New Age on 11 November 2013, which in my considered view contained unprecedented, unprovoked, unwarranted and inexplicable attack on me.

The vitriolic name calling directed at me without cogent justification, appeared in an editorial comment that is replete with insults such as “arrogant”, “erratic”, “believing to be invincible”, “above the law”, and many other things. I am still baffled as to what on earth have I done to provoke The New Age editor’s ire.

I must indicate, at that outset, that an editorial piece is part of editorial independence which flows from the right to freedom of expression, incorporating freedom of the media entrenched in section 16 of our Constitution. I must also indicate that my concern with the editorial piece is not because it expresses views that do not resonate with mine. It is what, in my respectful view, is an unprovoked vitriolic attack on me in a piece that is replete with logical fallacies that I wish to point out.

I welcome candid and informed debate on the institution of the Public Protector in a democratic state such as ours, where values of accountability and transparency are paramount to our constitutional arrangement and freedom of speech, disagreements and confrontations in pursuit of a strong democracy. I also welcome considered and fair criticism of me as I am aware that, like all humans, I am not perfect.

It is accordingly not my intention or my right to interfere with editorial liberties. I must also indicate that I read The New Age daily and have found its previous reporting on my office and myself to be professional, impersonal and unemotional.

Personal as the attack may be, it has implications for the legitimacy of the institution I head. I believe it was for this reason that the framers of our Constitution, added the need for the preservation of the dignity of institutions supporting constitutional democracy, which includes my office. The Public Protector Act takes the matter further by providing, in section 9, dealing with “Contempt of the Public Protector” that “No person shall insult the Public Protector (or) , in connection with an investigation, do anything , which, if the said investigation, had been proceedings in a court of law, would have constituted contempt of court”

The references made in the article, to justify the vitriolic labeling, do not, in a rational world, back the conclusions in it. Such references include my appearance before the Justice Portfolio Committee on 15 October this year, where under extreme provocation involving screaming and all manner of name calling from one member I remained calm, polite and professional. Not once did I raise my voice, deviate from the legal and constitutional points I was making or “play the man”, so to speak, rather than the ball. Incidentally the person who was accusing me of all manner of things, including “the absurdity” of holding Parliament and fellow chapter 9 to account on their administrative actions has never come back to apologize for wrongfully accusing me of being the first to exact such accountability, despite the fact that at the same meeting, but unfortunately after she had stepped out, I shared with the committee reports on the website on similar investigations by my predecessors. In respect of Parliament, the report I shared on the day involved a more intrusive scrutiny, on a matter more intrinsic to Parliament’s core business.

On the issue of Parliament having no power to second guess me as Public Protector after I have made my decision or finding on a matter, the legal opinion Parliament sourced following my letter, clarifying same to the chairperson of the Justice and Constitutional Development Portfolio Committee, confirmed my views.

My handling of the IEC investigation is one of the examples presented in the article as evidence of my arrogance and erratic behavior. I am again baffled. All I did was to exercise a power exercised by the Public Protector in the last 18 years, being to investigate, report and take (what I consider to be) appropriate remedial action. That is a power conferred on me by section 182 of the Constitution. During the investigation, neither the IEC nor the Chairperson of the IEC objected to my jurisdiction, which in any event is clearly set out in section 239 of the Constitution and section 6 of the Public Protector Act, read with the Public Finance Management Act. My findings on maladministration have since been confirmed by the National Treasury, which conducted a forensic assessment of the lease in question. Treasury’s provisional findings include the fact that the company in question did not have a tax clearance certificate at the time that they were awarded the contract, a matter that was discussed by the IEC’s EXCO. In terms of the law, a company without a tax clearance certificate should be thrown out at the clerical stage and cannot be considered.

Regarding sending to Parliament the issue of appropriate remedial action on the IEC Chairperson’s conduct, I’m interested in how the writer of the editorial piece would have had me handle it. It is common cause that the Chairperson was not a commissioner at the time and therefore could have been held to account by the Commission. But by the time the investigation took place she was not only a commissioner but the Chairperson of the Commission. Am I to be considered arrogant and erratic for being taken to court by the Chairperson of the IEC who is acting on her own account with no authority from her own Commission, challenging jurisdiction after the findings when she never did so during the investigation?

On the question of pointing out that there’s a challenge regarding the competent authority to receive a report about the president following an investigation conducted under the Executive Members’ Ethics Act, I’m even more baffled by the Editor’s attack. The Executive Members’ Ethics Act 82 of 1998 does not provide that the Public Protector can submit his/ her report directly to Parliament. In terms of section 3(2) of the Act -

“The Public Protector must submit a report on the alleged breach of the code of ethics within 30 days of receipt of the complaint-

(a) to the President, if the complaint is against a Cabinet member, Premier or Deputy Minister; and

(b) (b) to the Premier of the province concerned, if the complaint is against an MEC.”

As can be seen, the EMEA does not give me discretional power regarding where to send the report. That is why in 2010 I requested an amendment and both Cabinet and Parliament agreed and have since been giving me progress reports.

It is worth noting that in the IEC case, Parliament took the view that regardless of the IEC being accountable to Parliament in terms of section 181(5) of the Constitution, it had no power to exact accountability on the IEC Chairperson regarding her conduct that I had found to be improper, in the procurement of the IEC’s national offices. When some Parliamentarians, and it would appear, the editorial piece in question suddenly say the President’s accountability justifies ignoring what the law (the EMEA) says, I’m left totally perplexed. Shouldn’t the principles used in the IEC case apply to the President?

Regarding my accountability to Parliament, the article states that I have “told all and sundry” I’m accountable to Parliament. I am indeed on record as having consistently said that my accountability to Parliament is not negotiable, it is clearly provided for in the Constitution and the law. Incidentally my accountability to Parliament is the same as the IEC’s and in terms of section 55 of the Constitution, that of members of the Cabinet. What baffles me is the part where I am accused of believing I’m above the law. Where does that come from?

Equally baffling, is the accusation that I think I’m invincible. In respect of what am I invincible or indestructible? Does the author know something I do not?

I must however, thank the author of the editorial piece for contributing to the national discourse on the role and powers of my office. I hope it’s not too much or offensive to ask that the contribution be to a rational discourse. That is a contribution towards creating a state that is accountable, acts with integrity at all times and is responsive to its entire people.

I further invite the editor to verify his observations of my demeanor against their own video footage recorded by ANN7 during my most recent engagements with stakeholders, including Parliament.

In the meantime I will continue, with the assistance of my superb team, to exercise my powers and perform my functions as demanded by the Constitution – without fear, favour or prejudice – in a manner that seeks to impose respect for the independence, impartiality, dignity and effectiveness of this institution while contributing to the rule of law.

THULI N MADONSELA
ADVOCATE OF THE HIGH COURT OF SOUTH AFRICA,
AND PUBLIC PROTECTOR OF THE REPUBLIC OF SOUTH AFRICA

*This letter was initially published on Friday, November 15, 2013 on page 19 of The New Age newspaper.