Guest Column

Are the findings against Mkhwebane enough for her to be struck off the advocates' roll?

2019-07-24 12:38
The Portfolio Committee on Justice and Correctional Services receives a briefing from the Public Protector, Busisiwe Mkhwebane, on her department's performance in 2015/16. (Photo: Jaco Marais)

The Portfolio Committee on Justice and Correctional Services receives a briefing from the Public Protector, Busisiwe Mkhwebane, on her department's performance in 2015/16. (Photo: Jaco Marais)

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With questions regarding Mkhwebane's ethical conduct and a finding that her office failed to discharge its functions without fear, favour or prejudice, the Public Protector's credibility has been dealt a serious blow, writes Phephelaphi Dube.

Two decisions of the Constitutional Court were handed this week. The majority decision, with the concurrence of eight judges, found that the Public Protector had failed to discharge her functions without fear, favour or prejudice as is demanded by the Constitution as well as the Public Protector's Act.

The minority judgment, penned by Chief Justice Mogoeng Mogoeng with the concurrence of acting Judge Goliath, while not exonerating the Public Protector from the conduct which the Pretoria High Court had described as creating a "reasonable apprehension of bias", differed on the question of costs.

Personal costs orders against public officials are certainly not the norm. Only in instances where their conduct has shown a gross disregard for their professional responsibilities, and where they acted inappropriately and in an egregious manner, have the courts not hesitated to hand down such orders.

Courts have a duty to uphold and enforce the Constitution, thus the imposition of personal costs orders on public officials who act contrary to their constitutional obligations is an important tool in achieving this goal.

The Public Protector is no ordinary litigant. The Office of the Public Protector is a state institution supporting constitutional democracy and has specific constitutional and ethical duties. These duties require from the Public Protector, among other things, compliance with the Constitution as well as maintaining a high standard of professional ethics. As a state institution, the Public Protector represents, not government officials, but the South African nation as well as the public interest.

Coupled with the fact that the Public Protector, Busisiwe Mkhwebane, is an advocate and hence an officer of the court whose duty it is to ensure the proper administration of justice, there is therefore, a higher standard required of her conduct.

A higher duty is imposed on public litigants, as the Constitution's principal agents, to respect the law, to fulfil procedural requirements and to tread respectfully when dealing with rights. The Public Protector is therefore enjoined by the Constitution to observe the highest standards of conduct in litigation.

The Constitutional Court found that the Public Protector conducted herself in a manner which falls far short of her position. The crux of the majority decision was that the Public Protector's conduct in the High Court warranted a personal costs order against her because she acted in bad faith and in a grossly unreasonable manner, in addition to dishonest engagement during the investigation.

This then raises obvious questions, in the light of such damning findings against the Public Protector, made by, as it were – the highest court of the land – what are the implications for her continued stay in office? Furthermore, are the findings enough for her to be struck off the roll of advocates?

The Constitution stipulates that the Public Protector can only be removed from office on three grounds – namely, misconduct, incapacity or incompetence. A committee of the National Assembly is tasked with making such a finding and thereafter, the National Assembly adopts a resolution by a two thirds majority to remove the Public Protector from office. The president must then remove the Public Protector from office.

The rules of the National Assembly do not specify how such a committee would embark on the process to assess the Public Protector's fitness for office. The rules too are silent on how a committee would measure incompetence, misconduct or incapacity. It is perhaps for this reason that the Constitutional Court sidestepped the question of whether the Public Protector had abused her office as that finding would have left the National Assembly committee no choice but to either find the Public Protector incompetent or guilty of misconduct.

However, the findings of the Constitutional Court may very well open up the Public Protector to a possible application to remove her from the roll of advocates. The Legal Practice Act provides that a court may strike off from the roll of advocates, the name of a person who is not "fit and proper". In assessing whether one is "fit and proper" courts consider the conduct of the person in question and have previously interpreted the term to mean credibility, integrity and conscientiousness.

It is for this reason that the Constitutional Court in 2012 found that Advocate Menzi Simelane was an irrational appointee as National Director of Public Prosecutions given his conduct before the Ginwala commission. His testimony, according to the Constitutional Court, was contradictory and without basis in fact or in law. This draws comparison to the Constitutional Court's finding that the Public Protector's dishonesty falls far short of the high standards required of her office. Although it must be pointed out that the Supreme Court of Appeal in the matter involving advocates Nomgcoba Jiba and Lawrence Mrwebi, while not disagreeing with the findings of wrongdoing as detailed by the lower court, was of the view that the wrong doing in question was not enough to have them struck off from the advocates roll.

Nevertheless, should a court find that the conduct of the Public Protector falls short of the "fit and proper requirement", then the Public Protector will no longer meet the requirements of the position, as demanded by the Public Protector Act.

With questions regarding the Public Protector's ethical conduct and a finding that the office failed to discharge its functions without fear, favour or prejudice as demanded by the Constitution, the credibility of the Public Protector has been dealt a serious blow.

Ultimately, holders of public office are expected to conduct themselves in a manner which is beyond reproach. There is a higher ethical duty which is imposed on them by virtue of their office. The health of South Africa's constitutional democracy in large part, is dependent on how such officials conduct themselves and how they discharge of their constitutional duties. It is vital that their credibility be beyond reproach. But in a nation where the sitting president may have misled the National Assembly regarding donations to his political campaign and where various sitting members of Cabinet have questions regarding ethical conduct – arguably there are many other public officials who would fail the stringent test required for ethical conduct.

In the meantime, the trust deficit between the state and its citizens continues its downward trajectory. Would removing the Public Protector from office improve – ever so slightly – this trust deficit?

- Phephelaphi Dube is an independent legal analyst.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

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