The rot goes all the way to the top
IN THE 2016 “Nkandla judgment”, in a matter involving the former president Jacob Zuma, the Constitutional Court finally and definitely settled the seeming lack of clarity on whether the powers of the public protector are binding. The apex court conclusively ruled that the Office of the public protector gave the “poor and marginalised a voice, and teeth that would bite corruption and abuse excruciatingly”.
In typical hyperbolic fashion, the recently retired Chief Justice Mogoeng Mogoeng described the public protector as “the embodiment of a biblical David … who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are”.
The apex court was also unequivocal that the powers of the office “are very wide powers that leave no lever of government power above scrutiny, coincidental embarrassment and censure. This is a necessary service because State resources belong to the public, as does State power”.
This understanding was not lost on the Judge President of the Gauteng Division of the High Court, Dunstan Mlambo, when he ruled in favour of the then public protector Thuli Madonsela that there “is nothing in either Public Protector Act or Ethics Act that prohibits the public protector from instructing another organisation state to conduct a further investigation. The Public Protector Act expressly empowers a public protector to obtain assistance in her investigations”.
At the time of delivering the Nkandla judgment, Mogoeng could not have anticipated that the very courts would later be among institutions accused of undermining the office of the public protector. Perhaps the most disturbing and embarrassing instance is when a judge chose to contradict himself when dealing with the same issue. Having endorsed the view that the powers of the public protector are expansive, Judge Mlambo seems to have undergone a Damascus experience in the case involving Mkhwebane.
Miraculously changing tune, Mlambo argued that “the Public Protector Act and the NPA act are clear that she has no power to direct and… investigate any criminal offence and how to go about doing this”. The change was occasioned by the fact that the office had a different incumbent, perhaps not of his liking. Such monumental judicial somersault is only possible where judges see themselves as politicians in robes and catering to the whims of politicians who may advance their careers.
It needs to be pointed out, however, that far from strengthening the office, the Nkandla judgment has done the opposite. It opened the flood of litigation against Mkhwebane’s office. Punitive costs have since been preferred against the incumbent in her personal capacity. These are meant to cripple her financially, force her into bankruptcy and intimidate her office against investigating the powerful.
The Nkandla judgment was also clear with regard to the powers of the President. It stated “that the president (Zuma) must reprimand the ministers involved pursuant to…the public protector’s remedial action”.
One would not expect President Ramaphosa’s lawyer to be oblivious to this ruling. But this is exactly what happened. In a matter relating to remedial actions preferred against Minister Pravin Gordhan, Matthew
Chaskalson, representing Ramaphosa, argued that it “may be that the president has no power to take disciplinary action against the minister. If that is the case, then the remedial action to take disciplinary action against the minister may well constitute a power that the president does not have”. But the very same president seems to have little difficulty in disciplining Minister Stella-Abrahams and the former minister of defence Nosiviwe Mapisa-Nqakula. The undermining of the office extends to the government.
The Office of the President has also not helped. It comes as no surprise that Mkhwebane’s reports trigger knee-jerk responses that seek to besmirch her person and to dismiss her findings.
The response of the Premier of the Eastern Cape Oscar Mabuyane regarding the findings against him follows this trend. Mabuyane understands very well that he is not the only one to have received “dubious loans”. He is thus undeterred by the mountain of evidence found in bank accounts, emails, sworn statements, WhatsApp messages that seem to implicate him in the abuse of taxpayers’ money. Opposition parties have quickly and expediently endorsed the public protector’s findings. But these are the very parties that not long ago could not wait to remove her from office.
The Eastern Cape premier is involved in another case. He has asked the High Court to interdict the Directorate for Priority Crime Investigation from investigating him.
The joke in the social media is that both Ramaphosa and Mabuyane belong to the same WhatsApp group. One asks the court to seal the documents, the other asks for the interdict. The saga surrounding Mabuyane is damning of the ANC’s rhetoric on fighting corruption. There is no doubt that the scandal has brought the organisation into disrepute. The party has been quick to force certain individuals involved in equivalent misdemeanours to step aside. This time around both the party and Ramaphosa seem to adopt the line that “one is innocent until proven guilty”.
For the fight against corruption to have real teeth, the country’s leaders must take the necessary measures to criminalise both active and passive corruption by public officials.
It seems that Ramaphosa’s strategy seems to be focused on shielding those corrupt officials belonging to his faction in the ANC. The seeming prevarication in dealing with Mabuyane gives rise to this perception. Mabuyane is a well-known staunch Ramaphosa ally. As long as factional interests dictate the selective targeting and shielding of members and ANC officials undermine the anti-corruption message, the rhetoric about fighting corruption remains hollow and lacks credibility.