The Public Protector and God: Quo vadis?

2019-06-18 16:06
Adv. Busisiwe Mkhwebane.

Adv. Busisiwe Mkhwebane. (Daily Sun)

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The Public Protector has gone through a horrid time since taking office. Her reports on allegations of maladministration, corruption, misappropriation of public funds and failure by the South African government to implement the CIEX Report and to recover public funds from Absa bank, and on the Vrede dairy farm project have been overturned, and in the review of the former she was slapped with a personal costs order.

Her report on an investigation into allegations of maladministration and impropriety in the approval of Ivan Pillay's early retirement with full pension benefits and subsequent retention by the South African Revenue Service (SARS) has been taken on review. She's been accused of stunning incompetence, meddling in politics and negligence in the performance of her duties. The Democratic Alliance (DA) and the Council for the Advancement of the South African Constitution (Casac) have called for her removal, arguing that she is not fit and proper. The Financial Sector Conduct Authority has accused her of being biased. The South African Communist Party (SACP) has called for a parliamentary inquiry into her fitness. And all of this has happened in less than three years of her being in the hot seat.

I have always been a believer that if one person, or even one institution, differs from you, that person or institution may very well be wrong. However, the more people and institutions differ from you, the less likely it becomes that everyone is wrong, and you are right. Armed with this particular brand of logic, I assumed that the Public Protector  will soon inform the nation that, after some much needed soul-searching, coupled with some concerted legal research into the power that she wields (and does not wield), she has found the error of her ways, and will henceforth correct her path in ensuring that her office once again lives up to the standards we became accustomed to in the heydays of advocate Thuli Madonsela.

I therefore nearly choked on my cornflakes when I read that, at a recent event of the South African Sheriff Society in Mpumalanga, the Public Protector proclaimed that "…I strongly believe I was placed in this position by the God that I serve and I believe that only He can remove me if He is of the view that I have failed."

Being an attorney, I immediately grabbed my copy of the Constitution and frantically started paging to Chapter 9.

I also asked my PA to get the administration department of my alma mater on the line, because if this were so, I was going to insist on a refund of my legal studies.

I got to section 193:

Appointments

193.

(1)      The Public Protector … must be women or men who—

(a)      are South African citizens;

(b)      are fit and proper persons to hold the particular office; and

(c)      comply with any other requirements prescribed by national legislation.

(4)      The President, on the recommendation of the National Assembly, must appoint the Public Protector …

(5)      The National Assembly must recommend persons—

(a)      nominated by a committee of the Assembly proportionally composed of members of all parties represented in the Assembly; and

(b)      approved by the Assembly by a resolution adopted with a supporting vote—

               (i)            of at least 60 per cent of the members of the Assembly, if the recommendation concerns the appointment of the Public Protector …

(6)      The involvement of civil society in the recommendation process may be provided for as envisaged in section 59(1)(a).

Huh. The president, hey? Sure, he's an important guy. But he's definitely not God (especially the one who appointed the current Public Protector). As I read through the section, I started to recall the public hype that existed around the nomination process when advocate Madonsela left office. But I cannot recall the Holy Father's input. And, reading the Constitution, it appears as if he shouldn't be involved at all.

"Megan, ask them to hold on for a minute."

As I slowly turned to section 194, I could also find no reference to divine intervention in the removal of the Public Protector from office. There was not one word about a deity's right to either hire or fire anyone involved in a Chapter 9 institution. Instead, section 194 reads thus:

Removal from office

194.   

(1)      The Public Protector … may be removed from office only on—

(a)      the ground of misconduct, incapacity or incompetence;

(b)      a finding to that effect by a committee of the National Assembly; and

(c)      the adoption by the Assembly of a resolution calling for that person's removal from office.

(2)      A resolution of the National Assembly concerning the removal from office of—

(a)      the Public Protector … must be adopted with a supporting vote of at least two thirds of the members of the Assembly;

(3)      The President—

(a)      may suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person; and

(b)      must remove a person from office upon adoption by the Assembly of the resolution calling for that person's removal.

Now I know that members of the National Assembly address each other as "Honourable Member", but this alone does not give them godlike powers. I know this, as being sworn in as a Member of Parliament or the National Council of Provinces is not akin to being clothed in papal regalia. And although they sometimes believe themselves to be quite special, they remain mere mortals, subject to the same law of thermodynamics that forces entropy on all of us. We can therefore assume that indirect heavenly intervention is also not at play here.

I told my PA to hang up.

Make no mistake, I fear the Almighty, and respect his works, but I understand why the drafters of our Constitution found it wise to leave God out of the decision-making process of appointing and removing the Public Protector. This is so due to the fact that the Public Protector derives her powers from the Constitution, not the Saint John's Bible. It is so because her functions are regulated by national legislation, and not the Ten Commandments. In her capacity as such, the Public Protector is there to represent all South Africans – people of all religions, as well as agnostics, and not just those who share the same faith or beliefs that she does. The office of the Public Protector is accountable to the National Assembly, not the National Council of Churches. The Public Protector is subject to the Constitution and the law, not the Old Testament and the New Testament. And her reports are subject to judicial review, not spiritual reflection.

Let us hope (and, if you are so inclined, pray) that the Public Protector begins to understand the responsibilities the Constitution has placed on her. Let us hope that she begins to understand what is expected from her, and what not. Let us hope that she begins to understand that exhalations such as those made by her in Mpumalanga brings shame to her office, and that she is not tempted into doing so again. Because if she does not begin to act in a manner that can be expected of someone holding such a high office, may God be with her, because no one else should be.

- Van Niekerk is a director at Smit Sewgoolam.   

Read more on:    busisiwe mkhwebane  |  public protector
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