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MIcheal Rhodes
 
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Why is Tina taking Thuli to court?

18 March 2014, 08:27

I feel obliged to write this article. I elected not to comment on the article revealing the intention of Minister Joemat-Peterson to take the Public Protector to court, as I anticipated the usual screams of how ill-informed and stupid I am as an ANC supporter. I anticipated this and I still anticipate it.

Before you accuse me of blindly supporting a corrupt Minister, I implore you to read my argument first and then answer thereto, without the usual insulting undertone. To me, there is nothing more grotesque than the hypocrisy of certain News24 followers and commentators.

The office of Public Protector falls under the ambit of a Section 181 of our Constitution. Hence, it should operate independent, and subject only to the Constitution and the law, and must be impartial and must exercise its powers and perform its functions without fear, favour or prejudice, as conferred to by section 181(2).

Now, subsequent to the Public Protectors somewhat bruising report involving Joemat-Peterson, Joemat-Peterson threatened to take the Public Protector to court. This as expected was met with the usual outcry by some. The arguments were that in taking the PP to court, the Minister in particular and the Government in general is threatening the office of the Public Protector and in doing so is attempting to sweep corruption under the carpet.

In order to render an argument in this regard, I need you to read what I said two paragraphs above, only this time I need you to pay specific attention to the wording of Section 181 (2). In doing so, you will note that wording of the said subsection makes specific provisions for the office of the Public Protector to be scrutinized by the Constitution as well as by law. Based only on this wording; would you concede that the Minister in wanting the Public Protector’s report to undergo judicial scrutiny is doing so under the ambit of the subsection in question. If not; kindly refer me a section in other legislation that would serve to prove the contrary. Also in your answer make reference as to why the provisions of such legislation supersede that of the Constitution.

The Constitution further provides that no person or organ of the state may interfere with the functioning of institutions such as the office of the Public Protector. Kindly refer to subsection 181(3). In your rebuke to my argument, I anticipate that this may be where some will argue that the Minister is acting in contrast with the Constitution as in taking the Public Protector to court; she is interfering with her functioning. Such an argument would be disingenuous and ill informed. The reason for my latter contention is that in South Africa, we have three arms of government, the judicial arm thereof being independent from the state. An argument that in wanting judicial scrutiny for a report made by the Public Protector, the Minister is acting in contravention of subsection 181(3) cannot possibly be true and should be met with the contempt it deserves.

Is this move by the Minister something foreign to our country? The answer is no, as the DA in 2012 also threatened to take the Public Protector to court subsequent to a report. Was this move also met with the same contempt as the matter at hand? From the reports at that time, I think not. Why should the Minister then be criticized for doing the exact same thing as the DA? Is this not hypocrisy?  

If the Public Protector is certain of her facts, she would welcome judicial scrutiny. This would serve to confirm her report and if found to be correct by a court of law, I would support any action taken against the Minister. I would even go as far as criticizing any lack of action taken against her. On the other hand however, I must ask what would it say about the Public Protector should a court of law finds against her report? Would it not be transparent for the same people who advocates competency in public offices to proverbially call for the Public Protector’s head? If not, would that too not render you a hypocrite?

Lastly, I know some will argue against the independence and / or competency of our courts. This would be disingenuous as well, as our judgments can be appealed against even to the Constitutional Court. If you however feels that the Constitutional Court’s judgment must be scrutinised as well then it means you agree with Zuma when he called for a commission to do same. I personally disagree with the latter call from our president.

Thank you for reading...

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