AT THE HEART OF THE DEBATE: Premier Helen Zille for her tweet. Picture: Phando Jikelo/ African News Agency (ANA)
Nineteen years ago, then premier of Mpumalanga Ndaweni Mahlangu stirred controversy when he stated during a press conference that it was okay for politicians to tell lies. The matter landed on the desk of erstwhile public protector and current judge of the High Court, advocate Selby Baqwa SC.

On the back of a thorough investigation, Baqwa, relying on the provisions of section 136 of the constitution and the Executive Members’ Ethics Act (EMEA), concluded that Mahlangu’s conduct was “unbecoming of a member of the executive” and that his utterances were “inconsistent with the office of a premier in that it compromised the credibility or integrity of his office and of government”.

Baqwa called on the Speaker of the provincial legislature to hold Mahlangu to account.

Recently we have had to revisit this particular case as advocate Busisiwe Mkhwebane’s findings on an investigation into an alleged violation of the executive ethics code by Western Cape Premier Helen Zille became the subject of a heated debate, with critics labelling her incompetent and going as far as to conclude that she had scant understanding of the constitution.

With Zille threatening a judicial review, the report looks set to continue to dominate discussions among legal and political commentators.

Such a dialogue is welcome, for two reasons: First, it is widely accepted in the global ombudsman community that an ombudsman’s report must be able to spark a public discourse as society engages with the contents thereof.

Second, the conversation that has ensued presents an opportunity for us to educate the public on some of the powers that advocate Mkhwebane’s office is entrusted with.

It has been nothing short of astonishing to hear and read what some influential people have had to say about the conclusions she made. It was equally incredible how some leading opinion makers have proved to be ignorant on the extent of her office’s powers.

Utterances such as “why hasn’t she investigated Julius Malema for hate speech?”, “she should have referred the matter to the Human Rights Commission”, “with so much on her plate, can someone please tell me why she even bothered to take up the issue of Zille’s silly tweet about colonialism?” to mention but a few.

It is now time for us to have our say. Let us start with a bit of background on the complaint that gave rise to the report and the resultant storm.

On July 7, 2017 Mkhwebane received a complaint from Khaya Magaxa, a member of the provincial legislature in the Western Cape. He alleged that in tweeting “for those claiming legacy of colonialism was ONLY negative think of our independent judiciary, transport, infrastructure, piped water etc”, Zille violated sections 2.1 (c) & (d) and 2.3(c) of the Executive Ethics Code.

Magaxa contended that in depositing that statement on social media, Zille failed to act in a manner consistent with the integrity of the high office she holds.

Essentially what a lot of pundits seem to have missed is that Magaxa’s complaint was not about a violation of human rights but rather about an alleged breach of the code of ethics and that, even if Mkhwebane had wanted to, she could not have wished this matter away. Here is why:

  • The public protector has the sole power, in terms of the EMEA, to investigate alleged violations of the code by the executive. No other institution in our jurisdiction has the power. Not the Human Rights Commission, not the Hawks, not the Auditor-General or the Special Investigation Unit. These bodies can do many things, just not the enforcement of executive ethics and, accordingly, Mkhwebane could not have referred the matter to any of them nor could they have entertained the matter if they had received a complaint couched the same way as the one she got.
  • For Mkhwebane to investigate, it ought to have been alleged that a president, deputy president, ministers, their deputies, premiers or member of the executive council - not a regular member of the public or a parliamentarian such as Malema - has conducted themselves in a manner that is in breach of the code.
  • The allegation ought to have been made by the president, the premier or members of the provincial legislatures and Parliament. In other words, a member of the public cannot file a complaint of ethical lapses on the part of the executive under the EMEA. At least not directly. They would have to go through a provincial or national parliamentarian to achieve their goal.

Section 3(1) of the act provides that: “The Public Protector MUST investigate ANY alleged breach of the code”. What we glean from this provision is that Mkhwebane is compelled to investigate whatever alleged breaches of the code come her way, provided they are from a legitimate complainant. She can’t even investigate the breaches on her own initiative. Accordingly, I have found questions such as why she wasted time and resources on such a complaint uninformed in the extreme.

Another gripe has been on the findings Mkhwebane made. In terms of section 182(1) (a)-(c) of the constitution, she has the power to investigate any alleged or suspected improper or prejudicial conduct in state affairs, in the public administration, in all spheres of government; report on that conduct and take appropriate remedial action. In addition, the EMEA provides in section 3(2) that “(t)he Public Protector must submit a report on the alleged breach of the code of ethics”. I want to deal with the reporting referred to in the two provisions.

Following Mkhwebane’s investigation, she went ahead to find and report that it was true that Zille tweeted as alleged and that, similar to the Mahlangu matter, the tweet in question violated the provisions of the executive code of ethics.

AT THE HEART OF THE DEBATE. Picture: Henk Kruger/African News Agency/ANA.

Prior to the release of the report, Mkhwebane granted Zille an opportunity to state her side of the story in compliance with section 7(9) of the Public Protector Act. It was then that the premier brought up, as a defence, section 16 of the constitution, which deals with the right to freedom of expression. Accordingly, Mkhwebane had to deal with that in the report and explain why she believed, in the circumstances, Zille’s defence would not hold.

Unfortunately, this has been a source of much criticism, with some arguing that Mkhwebane has no powers to make pronouncements on violations of human rights. The courts will provide clarity there, but I have concluded that either critics only learnt about the institution of the public protector when Mkhwebane assumed duty in October 2016, or they have a personal problem with her because this is not the first time a public protector makes a finding that touches on the infringements of rights.

I hope that people will now understand that, legally speaking, only the public protector could investigate the complaint from Magaxa, that she was obliged to investigate, that she could only investigate on the basis of a complaint by an MP or MPL and that the complaint ought to have been about a member of the executive, who is alleged to have breached the code of ethics.

The mammoth task Mkhwebane has been entrusted with by the people of South Africa, through their public representatives, is such that she cannot afford any distractions. As such, we will carry on with our resolve to take the services of the public protector to the grassroots.

* Oupa Segalwe is the acting spokesperson of the public protector.

** The views expressed here are not necessarily those of Independent Newspapers.

Cape Argus