Some ‘expert’ criticism on Public Protector's Zille report borders on ignorance

Published Date: 
Monday, 25 June, 2018

Nineteen years ago, then Premier of Mpumalanga, Ndaweni Mahlangu, stirred controversy when he stated during a press conference that it was okay for politicians to tell lies. The matter landed on the desk of erstwhile Public Protector and current judge of the High Court, Adv. Selby Baqwa SC.

On the back of a thorough investigation, Adv. Baqwa, relying on the provisions of section 136 of the Constitution and the Executive Members’ Ethics Act (EMEA), concluded that Mr Mahlangu’s conduct was “unbecoming of a member of the executive” and that his utterances were “inconsistent with the office of a premier in that it compromised the credibility or integrity of his office and of government”. Adv Baqwa called on the Speaker of the provincial legislature to hold Mahlangu to account.

Over the past week we have had to revisit this particular case as Public Protector Busisiwe Mkhwebane’s findings on an investigation into an alleged violation of the executive ethics code by Western Cape Premier Helen Zille became the subject of a much heated debate, with critics labelling her incompetent and going as far as to conclude that she has scant understanding of the constitution.

With Hon. Zille threatening a judicial review, the report looks set to continue to dominate discussions among legal and political commentators alike.

Let me say at the outset that such a dialogue is welcome, for two reasons: First, it is widely accepted in the global ombudsman community that an ombudsman’s report must be able to spark a public discourse as society engages with the contents thereof. Second, the conversation that has ensued presents an opportunity for us to educate the public on some of the powers that Adv. Mkhwebane’s office is entrusted with.

It has been nothing short of astonishing to hear and read what some influential people have had to say about the conclusions she made. It was equally incredible how some leading opinion makers – writing and speaking authoritatively – have proved to be ignorant on the extent of her office’s powers.

Utterances such as “why hasn’t she investigated Julius Malema for hate speech”, “she should have referred the matter to the Human Rights Commission”, “with so much on her plate, can someone please tell me why she even bothered to take up the issue of Zille’s silly tweet about colonialism”, to mention but a few, really set the internet ablaze.

It is now time for us to have our say. Let us start with a bit of background on the complaint that gave rise to the report and the resultant storm.

On July 7, 2017 Adv. Mkhwebane received a complaint from Hon. Khaya Magaxa, a member of the provincial legislature in the Western Cape. He alleged that in tweeting “for those claiming legacy of colonialism was ONLY negative think of our independent judiciary, transport, infrastructure, piped water etc.”, Hon. Zille violated sections 2.1 (c) & (d) and 2.3(c) of the Executive Ethics Code.

Hon. Magaxa contended, among other things, that, in depositing that statement on social media, Hon. Zille failed to act in a manner that is consistent with the integrity of the high office she holds as a member of the executive arm of government.
Those that conceived our widely respected constitution inserted, in sections 96 and 136, ethical standards that ought to be upheld by members of the executive at national and provincial levels respectively. One of these standards is for members of the executive to not act in a way that is inconsistent with their office.

The sections also provide that the executive must act in accordance with a code of ethics to be prescribed by national legislation. The national legislation envisaged here is the same EMEA that Adv. Baqwa relied on when he dealt with the Mahlangu matter. The code, which did not exist at the time of the Mahlangu case, has since been developed and is in force.

Essentially what a lot of pundits seem to have missed is that Hon. Magaxa’s complaint was not about a violation of human rights but rather about an alleged breach of the code of ethics and that, even if Adv. Mkhwebane had wanted to, she could not have wished this matter away. Here is why:

* The Public Protector has the sole power, in terms of the EMEA, to investigate alleged violations of the code by the executive. No other institution in our jurisdiction has the power to investigate these. Not the Human Rights Commission, not the Hawks, not the Auditor-General or the Special Investigation Unit. These bodies can do many things, just not the enforcement of executive ethics and, accordingly, Adv. Mkhwebane could not have referred the matter to any of them nor could they have entertained the matter if they had received a complaint couched the same way as the one she got;

* For Adv. Mkhwebane to investigate, it ought have been alleged that a President, Deputy President, Ministers, their Deputies, Premiers or Member of the Executive Council (MEC) – not a regular member of the public or a parliamentarian such as Hon. Malema – has conducted themselves in a manner that is in breach of the code;

* The allegation ought to have been made by the President, the Premier or members of the Provincial Legislatures and Parliament. In other words, a member of the public cannot file a complaint of ethical lapses on the part of the executive under EMEA. Well, at least not directly. If members of the public wanted to get their way, they would have to go through a provincial or national parliamentarian to achieve their goal; and

* Section 3(1) of the act provides that: “The Public Protector MUST investigate ANY alleged breach of the code ...” What we glean from this provision is that Adv. Mkhwebane is compelled to investigate whatever alleged breaches of the code that come her way, provided that they are from a legitimate complainant. She can’t even investigate the breaches on own initiative. Accordingly, I have found questions such as why she wasted time and resources on such a complaint uninformed in the extreme.

Another gripe has been on the findings Adv. Mkhwebane made. In terms of section 182(1) (a)-(c) of the Constitution, she has the power to investigate any alleged or suspected improper or prejudicial conduct in state affairs, in the public administration, in all spheres of government; report on that conduct and take appropriate remedial action. In addition, EMEA provides in section 3(2) that “[t]he Public Protector must submit a report on the alleged breach of the code of ethics …” I want to deal with the reporting referred to in the two provisions.

Following Adv. Mkhwebane’s investigation, she went ahead to find and report that it was true that Hon. Zille tweeted as alleged and that, similar to the Mahlangu matter, the tweet in question violated the provisions of the executive code of ethics.

Prior to the release of the report, Adv. Mkhwebane granted Hon. Zille an opportunity to state her side of the story in compliance with section 7(9) of the Public Protector Act. It was then that the premier brought up, as a defence, section 16 of the Constitution, which deals with the right to freedom of expression. Accordingly, Adv. Mkhwebane had to deal with that in the report and explain why she believed, in the circumstances, Hon. Zille’s defence would not hold.

Unfortunately, this has been a source of much criticism, with some arguing that Adv. Mkhwebane has no powers to make pronouncements on violations of human rights. The courts will provide clarity there but I have concluded that it’s either critics only learned about the institution of the Public Protector when Adv. Mkhwebane assumed duty in October 2016 or they have a personal problem with her because this is not the first time a Public Protector makes a finding that touches on the infringements of rights.

In report 11 of 2014/15, dealing with allegations of maladministration by the City of Johannesburg relating to its failure to comply with its by-laws and the constitution regarding hijacked building, the Public Protector found, among other things, that the City violated the complainants’ rights under section 25 of the Constitution. Like the right to freedom of expression, property rights are human rights enshrined in the Bill of Rights.

The Public Protector has made several other findings concerning the infringements of human rights such as violations of section 33, which deals with the right to just administrative action. In all of these instances, no one ever complained that the Public Protector was encroaching into the exclusive mandate of other institutions.

I must add that the issue of overlaps and duplications in the mandates of independent institutions supporting our constitutional democracy has been on the public agenda since time immemorial. The late Dr. Kader Asmal even led a parliamentary ad hoc committee, which looked into these and came up with a comprehensive report in that regard.

For us as the Public Protector, given our broad mandate, we have sought to enter into memoranda of understanding with all affected institutions as a mechanism to manage the overlaps. Such agreements provide for cross-referrals of matters between us and such institutions. But, even when we refer, we consider other issues such as whether the institution we reroute matters to has the power to provide a remedy in the same way as we do.

Lastly, let me place it on the record the fact that the Public Protector has never been and is not opposed to criticism so long it is fair, constructive and well-supported with facts. What concerns her is that some of the criticism in the case at hand, no matter how unsound, is used by individuals and organisations that have never supported her appointment to this position to push ahead with their spirited campaign to have her removed from office.

One of these organisations objected to her appointment on a false claim that she was a spy. She has since challenged them to back up their claims. Nearly two years later, they are yet to produce a shred of evidence in that regard. Now they have resorted to finding fault in the exercise of her powers and the performance of her functions in order to realise what their wild allegations failed to achieve.

We also accept that people will disagree with our findings now and again, which is absolutely okay. After all, people have been known to disagree with decisions of accountability for such as my office, the courts, tribunals and commissions of inquiry.

That is why aggrieved parties in such cases are entitled to a recourse as provided for in the law. In the case of the Public Protector that recourse is the right to approach the courts for a judicial review.
I hope that people will now understand that, legally speaking, only the Public Protector could investigate the complaint from Hon. Magaxa, that she was obliged to investigate, that she could only investigate on the basis of a complaint by an MP or MPL and that the complaint ought to have been about a member of the executive, who is alleged to have breached the executive code of ethics.

The mammoth task that Adv. Mkhwebane has been entrusted with by the people of South Africa, through their public representatives, is such that she cannot afford any distractions. As such, we will remain focused and carry on with our resolve to take the services of the Public Protector to the grassroots.

Oupa Segalwe
Acting Spokesperson
Public Protector South Africa