Legalbrief | your legal news hub Friday 01 October 2021
Mkhwebane in fight for her professional life
Advocate Busisiwe Mkhwebane is facing a battle for her professional life today following yesterday’s damning Constitutional Court judgment (see separate detailed report below) that, among other things, exposed her as having lied under oath, notes Legalbrief. Her critics are closing in on several fronts. Already she will know that two parties – the National Association of Democratic Lawyers (Nadel) and Accountability Now, a non-profit organisation – have called on the Legal Practice Council (LPC) to investigate her suitability to remain on the roll of advocates, and that political parties and civil society organisations want the parliamentary process to remove her from office expedited. Nadel called for her to step down immediately ahead of a LPC investigation into her fitness to remain on the roll of advocates. In a statement last night, Nadel said the Constitutional Court had ‘handed down a seminal judgment ... that signals the strength of the judicial system and comes at a critical juncture when serious concerns have been raised about the nature of the power that the Public Protector exercises and her ability to discharge the functions of her office without fear, favour or prejudice’. Noting the court found her conduct to have fallen short of the basic values, principles and standards required of her in a constitutional democracy, it says: ‘Mkhwebane has brought the office of the Public Protector into disrepute. Her conduct is incompatible with the high office that she holds. Nadel therefore calls on Ms Mkhwebane to resign immediately and for her conduct to be investigated by the LPC with the view to establishing whether she is fit and proper to remain on the roll of advocates.’
Accountability Now wrote to the LPC soon after the ruling, asking it to take note of the case, says a Fin24 report. ‘There are serious, final and unappealable findings reflecting on the honesty, integrity and competence of the Public Protector, who is a duly admitted advocate of the High Court,’ Advocate Paul Hoffman, a director at Accountability Now, said in the letter to the LPC. The Constitutional Court upheld the February 2018 order of the Gauteng High Court (Pretoria) for Mkhwebane to be personally liable for 15% of the SA Reserve Bank’s legal fees in the Absa/Bankcorp case. It also upheld the High Court’s decision that Mkhwebane had acted in bad faith. The majority judgment also found that Mkhwebane’s ‘entire model of investigation was flawed’ and that she was not honest about her engagements during the investigation. ‘Kindly confirm that the council is looking into the matter with a view to bringing an application for the striking off the roll of advocates of Ms Mkhwebane as part of its legislated disciplinary functions. We have copied her on this e-mail,’ Hoffman wrote. The court also ruled that the Public Protector ‘had put forward a number of falsehoods’ in the course of litigation, including misrepresenting under oath the economic analysis underpinning her Absa report. ‘As you know, it is intolerable that an officer of the court should be found to be lying on oath. Her response that the judgment of the court creates a bad precedent is contemptuous of the court and does her no credit,’ Hoffman told the Legal Practice Council. The LPC has not yet responded to the calls.
Mkhwebane said on her office’s official Twitter account that the judgment set a precedent for all other Public Protectors and that it was not clear how the office would be able to do its work going forward without fear, favour or prejudice. However, notes a Business Day report, the majority judgment penned by Justices Sisi Khampepe and Leona Theron said that those concerns were ‘unwarranted’. ‘Personal costs orders are not granted against public officials who conduct themselves appropriately. They are granted when public officials fall egregiously short of what is required of them.’ Given that a Public Protector can be ousted on grounds of misconduct, incapacity or incompetence, this latest setback has given more ammunition to those who have called for Mkhwebane – who is in the midst of a battle with President Cyril Ramaphosa over her findings that he violated the Constitution by misleading Parliament over a donation from scandal-hit firm Bosasa – to be removed from office. Business Day quotes Lawson Naidoo, executive secretary of the Council for the Advancement of the SA Constitution, as saying Mkhwebane’s position is untenable after the judgment, as ‘she has basically been found to have lied to the court’. Her conduct meant that the LPC would have to consider whether she is still fit and proper to be an advocate, he said.
Mkhwebane has been under fire since the Bankorp report was first set aside by the Gauteng High Court (Pretoria) in 2018, says Business Day. Her detractors were further emboldened in 2019 after the High Court set aside another report, on the Gupta-linked Vrede dairy farm scandal. The court, however, reserved judgment on the costs order pending the outcome of the Constitutional Court judgment. Mkhwebane’s critics have accused her of bias and involving her office in ANC factional battles. While she did not probe the involvement of former Free State agriculture MEC Mosebenzi Zwane and former Premier Ace Magashule in the Vrede farm case, she has been steadfast in pursuing cases against Ramaphosa and Public Enterprises Minister Pravin Gordhan, a key ally of the President and one of the most vocal critics of Jacob Zuma within the ANC during the latter stage of his presidency.
The judgment will give Ramaphosa’s case against Mkhwebane a boost. Though he is yet to file court papers, notes TimesLIVE, in announcing his court action on Sunday, Ramaphosa said: ‘In failing to provide me with an opportunity to comment on proposed remedial action, the Public Protector has violated provisions of the Public Protector Act, the Constitution and principles of common law.’ This complaint will find support in yesterday’s judgment, which found that her ‘entire model of investigation was flawed' and that she 'failed to engage with the parties directly affected by her new remedial action before she published her final report'.
A note of caution for those baying for her blood is introduced by Pierre de Vos in his analysis of the judgment on his Constitutionally Speaking blog. He says that although the judgment should make it impossible for Mkhwebane to continue in her job, the fact ‘that her tenure has become highly politicised, and because her removal will be fiercely resisted by the Zuma/Magashule/Malema faction, it is impossible to predict whether the National Assembly will remove her from office in accordance with section 194 of the Constitution’. He points out a failure to be frank and candid, as the court found, is judicial speak for lying, for being a liar, for acting in a dishonest manner, and for misleading the court. Noting the court found her conduct fell far short of the high standards required of her office, he poses the question: What is to be done? Says De Vos: ‘It is clear that the Constitutional Court judgment has destroyed the Public Protector’s credibility. Even in cases where the Public Protector acts in an honest and impartial manner, doubts about the veracity of a report will remain because of the reasonable apprehension of bias and incompetence created by the Constitutional Court judgment.’ He says many people in the Public Protector’s position would have resigned in an attempt to protect the office of the Public Protector against the inevitable lack of legitimacy and credibility. Some might also have resigned to try to save face.
If the Public Protector chooses to stay on, it will fall to the National Assembly to remove her from office, although it might be hampered by at least two issues regarding the existing rules, which De Vos explains in his Constitutionally Speaking analysis. He concludes: 'If the Public Protector does not resign and if members of the National Assembly decline to remove her from office, the Public Protector will limp on like a badly wounded soldier. She will make regular public statements believed by few, write reports trusted by even fewer, and impose remedial action that will, predictably, be challenged in the courts while a group of people will continue to loudly sing her praises despite the fact that she is dishonest and incompetent (or perhaps because of it).’
On the parliamentary front, DA chief whip John Steenhuisen said the judgment proved Mkhwebane's failings ‘go much deeper than simple technical errors’, notes a News24 report. ‘Simply put, she is not fit to hold the office she occupies and is, in actual fact, grossly incompetent,’ Steenhuisen said in a statement. ‘A distinction must be drawn between the current incumbent of the Office of the Public Protector and the office itself. Nobody can argue that the current incumbent is, by any stretch of the imagination, a suitable occupant. The DA does, however, believe that every report produced by the office of the Public Protector should still be judged on its own merits. The DA will therefore write to the Speaker to request that our complaint regarding the Public Protector's fitness to hold office be expedited.’ He added that the DA would also study the judgment to determine whether perjury charges should be laid against Mkhwebane. The ANC's alliance partner, the SACP, also welcomed the ruling and reiterated its call that Parliament should ‘discharge its constitutional responsibilities, initiate an inquiry into her fitness to hold office on the basis of the damning court findings against her, and hold her to account for her untenable actions as detailed in the numerous court findings’. ‘South Africa cannot afford to have an individual, who has been found to be dishonest by the apex court ... still continuing to function in that capacity,’ SACP spokesperson Alex Mashilo said. There were also calls for Mkhwebane's removal from civil society groups. The Organisation Undoing Tax Abuse (Outa) said she should prepare to vacate her office. ‘She can no longer continue in that role,’ Advocate Stefanie Fick, Outa's head of legal affairs, said, adding: ‘Her pushback against accountability measures by Parliament further underlines her lack of understanding of her role.’
The EFF, a staunch supporter of Mkhwebane, appears to have avoided the damning detail of the judgment in its reaction, notes Legalbrief. It said the judgment was not an indictment on all her reports and must be viewed in isolation and dealt with on its own merits. However, says a News24 report, it welcomed the ruling, saying the court, as the apex court, ‘must be respected and its judgments adhered to’. But it cautioned against seeing this judgment as a blemish on the Office of the Public Protector. ‘Each of the reviews of the Public Protector's reports must be dealt with on its own merits,’ said EFF spokesperson, Mbuyiseni Ndlozi. ‘This single judgment does not mean all the Public Protector's reports are to be ignored and dismissed.’ A Daily Maverick report points out that an EFF statement called for Mkhwebane to go on 16 February last year. It was issued after the initial High Court judgment and read: ‘If this important office is to have integrity it cannot be occupied by people who lie or are misleading. Above all, who are impartial (sic) and hell-bent on undermining the mandate of the office and the Constitution. We call on her to step down with immediate effect; this judgment means she has failed in her duty.’ The DA’s Mmusi Maimane may sit with a similar conundrum, says the DM. He laid the complaint against Ramaphosa, but also wants Mkhwebane gone. Ramaphosa’s weakened position is at this stage much dependent on the credibility of Mkhwebane. The DA will have to find a way to show that the allegations against Ramaphosa have their own legs – that Ramaphosa can be corrupt and Mkhwebane can be unfit for office, and that the two ‘facts’ are not mutually exclusive. Mkhwebane attended the reading of the judgment and told journalists after proceedings that ‘I never told any falsehoods’. She knows ‘quite well’ that she cannot appeal against the apex court’s judgment, and didn’t want to be pushed on the fact that she was found to have acted in bad faith, says the DM.