Protector should resist the temptation of becoming a jack of all trades, warns Sipho Seepe.
About 10 years ago was invited by Kgalema Motlanthe, then ANC secretary-general, to a mainly ANC discussion group. Thabo Mbeki’s presidency was at its strongest.
ANC members had been reduced to unquestioningly parroting everything Mbeki said or wrote. Some members went as far as adopting his mannerisms.
From the body language of some, it was clear my presence was discomforting. I was a persona non grata. At the time, everything I wrote was anathema. As if to react to the awkwardness, Motlanthe advised that the ANC engage with those who disagreed with it.
He intimated that would help in refining and sharpening one’s perspective. Most importantly, he urged those in attendance to learn to celebrate doubt.
A prominent professor, now a fierce critic of the current ANC administration, retorted by indicating that the ANC is is not in the business of doubting. Motlanthe was echoing revolutionary thinkers such as Edward Said in calling for ruthless criticism of all that exists, including one’s organisation.
Just a few days prior to his appointment to the Constitutional Court, Judge Edwin Cameron expressed similar sentiments. He indicated that he was disappointed that legal scholars have not critically engaged and/or challenged some of the decisions of the Constitutional Court.
Cameron was simply stating the obvious; the legal process is not an exact science.
This is true even when every effort is made to be fair, objective and impartial. It is not uncommon for judges to arrive at different conclusions even when presented with the same facts and witnesses.
At times, courts get it wrong. Innocent people are sometimes found guilty and vice versa. It is for this reason that courts would rather let a guilty person free than jail an innocent person even for a day.
The dictum that one must be presumed innocent until proven guilty and that this should be proven beyond reasonable doubt is not for convenience.
However, if the dominant public narrative is anything to go by, it would seem that we think this should apply to ourselves, but not to others.
There are those who are guilty by definition. And, as such, should not be given the benefit of the doubt.
The ANC, its president and the government, for instance, fit into this category. For good reason, one might say. After all, they fit the profile of habitual delinquents.
They have repeatedly displayed lapses of moral judgment in the past.
It is simply a case of once a criminal always a criminal. Put differently, if a thief has been caught a number of times, there is no need to apply a rigorous examination of the facts - simply pass the guilty verdict.
And those we dislike with a passion remain guilty even if the courts have pronounced them otherwise.
Interestingly, the polluters of the public space are often those who project themselves as defenders of constitutionalism.
In delivering a judgment in a case involving Jacob Zuma, Judge van der Merwe identified those who were guilty of contaminating the public space.
He wrote: “What, however, is disconcerting, is the fact that some pressure groups, organisations and individuals found the accused guilty and others found him not guilty in their comments on the case, without knowing what the evidence was and long before all the evidence was presented.”
Van der Merwe’s conclusion is damning. He writes: “The accused’s evidence was also clear and convincing in spite of media efforts to discredit him.”
It would seem that the advice from Motlanthe (in making room for doubt) and Judge Cameron (rigorous examination of pronouncements) and Judge Van der Merwe (in letting facts speak for themselves) has fallen on deaf ears.
Instead the pendulum seems to swing in the opposite direction. We seem to hold unshakeable beliefs regarding our perspectives. In a week or so, the country will have to contend with possibly differing reports on Nkandla.
Judging by public commentary, the inter-ministerial report has already been discredited. This, despite the findings that indicate irregularities and corrupt practices. Nothing short of implicating the president would do.
Indications abound that the only credible report would be that of the public protector. Unlike the government, the public protector allegedly has nothing to gain.
The president and government on the other hand, have material interest in the matter. And ministers have both personal and political interests to protect.
The unbridled faith in the public protector assumes faultless legal competence, investigative capacity, and infallibility in judgment on her part.
Her infallibility is assumed, but nothing could be further from the truth.
First, our constitutional framework envisages instances where the public protector’s findings could be successfully reviewed by the courts. In other words, it does not assume the infallibility of her office.
Second, the resources, investigative standards and rigorous examination of facts are lower or less onerous than those of the courts.
Third, the public protector herself has acknowledged that hard as she tries, she is also human. It is highly plausible that some of her findings could have been reviewed by a court of law.
For reasons of incompetence and fear of being accused of wanting to railroad her office, the ANC government has so far not exercised the court review option. It has tended to accept the public protector’s findings.
This is both an advantage and a disadvantage. On the positive side, it signals the confidence it has in the office. The downside is that findings the courts would have challenged are left unattended.
Fourth, certain publicly reported lapses of judgment should make us circumspect. The most prominent involve the DA. Madonsela’s leaked (now common) provisional report had found that the multimillion-rand tender awarded by the Western Cape government to be invalid. This resulted from “alleged improper procurement of communication services”.
Madonsela’s observations were strongly disputed by Premier Helen Zille. She found Madonsela’s report to be “fatally and legally flawed”. Zille opted to state her case publicly after her office had repeatedly tried to make contact with the seemingly unreachable public protector.
Zille’s legal counsel had also come to a determination that the termination of the contract could not be legally sustained. It is common cause that the final report was materially different from the provisional report.
Madonsela’s fractious relationship with Parliament adds to her woes.
On more than one occasion she found herself having to apologise to members of Parliament. She was without allies when she was understood to be saying that she is not accountable to Parliament.
Her deputy, Advocate Kevin Malunga, found himself in an unenviable position when he had to state that: “To the best of my knowledge, the views expressed by Advocate Madonsela regarding our relationship with Parliament are her personal views and do not reflect my views or those of any of the staff at the office of the public protector or any official policy adopted.
“In this regard, while we assert our independence as an institution as spelled out in Section 181(2) of the constitution, we fully acknowledge and respect the oversight and guidance of Parliament as prescribed by 181 (5) of the constitution.”
Arguably this may reflect a strong sense of self-belief.
It could also indicate an unhinged personality associated with those who have become a law unto themselves. Leadership is about taking along your own team. It is about managing relationship with other institutions.
Despite consistently berating the government, and providing damning reports, the office of the auditor- general has succeeded in managing good inter-institutional relations.
To its (dis)credit, despite its unhappiness with the office of the public protector, the ANC has not gone out to challenge its reports.
This is in part because her findings have tended to confirm the most obvious weakness and incidences of corruption in the government.
And because by and large she is doing a sterling job, she is always given the benefit of doubt.
When her son crashed the state car into a wall of a home, she was quick to indicate that the law should take its course.
Imagine if this was a minister’s car! No assumption would have been made that this was the only time a minister’s son used the state vehicle.
We would be out there demanding proof that the repairs are borne personally by the minister concerned.
There would have been hullabaloo and continued follow-up by the media. Because we love her so much, we have given her and her son the benefit of the doubt.
Would she have done the same for a minister?
To conclude, we do ourselves no favours if we start having unbridled faith in an individual.
Sooner or later, she will become the dumping ground for our problems.
She, on the other hand, should heed the advice that has come from all parties in the government that she needs to prioritise, limit herself to those matters that fall within her jurisdiction and not allow her office to become a political football.
She should resist the temptation of becoming jack of all trades. If her legal colleagues sometimes find her legal reasoning suspect, how much more faith should we have in matters that are outside her area of expertise?
Commenting in a daily paper, she says she “found its previous reporting on my office and myself to be professional, impersonal and unemotional”.
Yet the same daily has seen it fit to describe her as “arrogant”, “erratic”, “believing to be invincible”, “above the law”, and many other things.
Instead of taking umbrage at its characterisation of her, she should take a deep breath and reflect.
Yes, we are all human, and society does us a disfavour when it imposes infallibility on us. We will do well to heed Kgalema Motlanthe, Edwin Cameron and Judge Van der Merwe’s counsel.
This is the counsel we should take as we await the public protector’s report. We would do well to place sober assessment of the facts, the legal competence, reasoning and findings first.
- Sunday Independent