A risk-averse public protector will be a setback for our democracy

The early signs coming from the office of the new incumbent are not good, writes Brett Herron

Amajor reason for advocate Thuli Madonsela ’ s perceived success as South Africa’s public protector was her willingness to take risks, including taking on the president. In March 2016, when the Constitutional Court handed down the so-called Nkandla judgment, ordering that findings by the public protector, and remedial action, were binding and could only be set aside through a high court review, it appeared to validate Madonsela’s tenacity.

Before the judgment, the public protector’s powers were not clearly defined as binding and enforceable, and there was therefore no imperative for implicated parties to take them on review. Now the office had real bite.

A year after the judgment, Madonsela’s term was up and she was replaced as public protector by advocate Busisiwe Mkhwebane. Mkhwebane quickly established that she, too, was willing to take risks, and take on the new president. But before you could say “public protector” she found herself snared in a web of high court reviews that were — eventually — to lead to her impeachment.

As a consequence of the Nkandla judgment, the office of the public protector led by Mkhwebane came under unprecedented scrutiny. Review applications became the norm for leaders in government implicated in wrongdoing — with the deep pockets of the state to cover their legal costs.

Mkhwebane took ill-informed risks, a succession of judges found, striking down the findings of her office in a series of judgments and negative cost orders. Under Mkhwebane, the public protector’s office spent hideous amounts of money trying to defend its findings in court — not to mention the high cost of public ridicule when findings were overturned.

Given this history, how willing would you be to risk defending your decisions if you were the new public protector, advocate Kholeka Gcaleka?

It ’ s an important question, because the public protector is the only designated constitutional office required to investigate allegations of breaches of the Executive Members’ Ethics Act by any member of the executive — which includes the president, his cabinet, premiers and MECs. This function is the office’s sole domain.

The early signs are not good.

Last month, the public protector’s office declined to defend its findings against Western Cape premier Alan Winde and MEC Anton Bredell, who were found to have breached the Executive Members ’ Ethics Act. The findings were based on recorded evidence that neither politician disputed.

I submitted the complaint to the public protector after receiving evidence from a whistleblower.

Bredell was recorded telling Oudtshoorn councillors to apply to his office to place the town under administration, so they could do DA work ahead of the 2021 local government election, while Winde later told the National Assembly’s portfolio committee on co-operative government & traditional affairs: “That ’ s how administrations work. You’ve got two ways of doing it. One, you can get a political agreement on an administration, or you have got to actually follow the rule of law ...”

Explaining why it had chosen not to defend its damning findings against Winde and Bredell, a spokesperson for the public protector’s office was quoted telling The Cape Times that it had elected to “err on the side of caution”.

“While the team was confident in defending the substantive merits of the investigation and its findings, the risk of another adverse finding with a cost order swayed the opinion in favour of erring on the side of caution and withdrawing opposition, ” the spokesperson said.

Winde and Bredell had exercised their right to take the findings on review, and to use public funds to “clear ” their names — and the public protector ’ s office folded.

If it allows its findings to be set aside by the high court unopposed, then what’s the point of the office of the public protector conducting investigations and making findings in the first place?

The principle of the public protector not wasting taxpayers’ money defending the indefensible is a good one, but choosing not to defend the findings of its own lawyers and investigators to avoid risking an adverse finding is an abrogation of its responsibilities.

In its judgment ordering that the findings of the office of the public protector were binding, the Constitutional Court described the office as “one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs ...”

Asserting its confidence in the substantive merits of its investigations and findings but failing to assert that confidence by opposing high court review applications because of a fear of an adverse cost order is inherently irreconcilable.

Many South Africans hailed the public protector ’ s office for getting its claws into former president Jacob Zuma, and applauded when Mkhwebane was removed as public protector. Among the costs could be that Mkhwebane becomes the last name on a short list of public protectors, with Madonsela, who felt relatively unfettered to execute the task with teeth.

The Constitutional Court said, “Our constitutional democracy can only be truly strengthened when: there is zero tolerance for the culture of impunity; the prospects of good governance are duly enhanced by enforced accountability; the observance of the rule of law; and respect for every aspect of our Constitution as the supreme law of the Republic are real.”

If the public protector’s office is now secondguessing its own decisions, due to the risk of an adverse legal costs order, then it is not meeting the court’s requirement for “appropriate remedial action”, and the bite of our constitutional democracy is not being strengthened.

Herron is the secretary-general of the Good party and an MP