Protector on shaky ground
I’M not a legal or a constitutional expert and I’m aware my analysis maybe rebuttable, but I think the charges by Advocate Busiswe Mkhwebane against her predecessor Advocate Thuli Madonsela are most unlikely to succeed if tested in any court in South Africa.
The charges are in terms of section 7(2) of the Public Protector Act. Both the complaint by the presidency and the charges against Madonsela are based on this section of the Act, and must be interpreted accordingly. There are two important aspects to consider: First, section 7(2) of the Act states that during an investigation, no information or any content of the documents should be disclosed unless the public protector determines otherwise.
But one needs to determine at what stage the investigation is regarded as being at the investigation stage as per section 7(2). Does the release of the official report mean the investigation has been concluded, or is it concluded only after all possible legal avenues, such as judicial review, have been exhausted?
A second aspect relates to the main reasons behind the disclosure of such information – if such charges pass the first test. It would then be necessary to look at whether the reasons for a disclosure were justifiable in terms of the law – and as we all know, there is room to make exceptions to each and every general rule.
To me, an investigation is complete once the official report is released.
And just because the president has lodged a request for a review of the report, it does not render the investigation incomplete – a review will be based on the outcome of the report.
Then, the disclosure of information in the case in point was surely made in the public interest. Therefore, it would also have been disclosed in the interest of justice – to demonstrate that the claims by President Jacob Zuma that he had not been given an opportunity to respond to the allegations against him in the state of capture investigation were, in fact, untrue.
It is my belief that the public protector, as a legal practitioner, should be aware of the possibility of individuals seeking to misinterpret the abovementioned section of the law.
She should also be aware of the delaying tactics of the president, as was evident when he first interdicted the release of the report only to withdraw his application a few days later.
Indeed the public protector might now find herself in the same situation.
With the president, after so many years of obvious distrust, suddenly turning to the Office of the public protector, Mkhwebane should also remember how the ANC caucus in parliament, the former chief whip, the National Assembly speaker, and the Minister of Police were all dumped in court at the last moment by Zuma as he sought to shift the blame onto them for Nkandla. — Thando Noel Witbooi, former Sasco and ANCYL leader