Pierre De Vos: Regardless of the politics, Public Protector's pursuit of
Gordhan is legally flawed and fails the honesty test. In June 2017, Julius Malema, leader of the Economic Freedom Fighters (EFF),
confessed that the party had "made a terrible mistake" to support the
appointment of Busisiwe Mkhwebane as Public Protector. (Mr Malema does not
appear to be a particularly good judge of character as he previously also
apologised for supporting Jacob Zuma.)
As it turns out, this confession was well made, as the High Court found a few
months later that the Public Protector "does not fully understand her
constitutional duty to be impartial and to perform her functions without fear,
favour or prejudice" and does not appreciate that her office requires her to
be honest.
Unfortunately, some of her recent actions have raised further worries about
her impartiality, knowledge of the law, and honesty. Because these actions
relate to her decision to subpoena Public Enterprises minister, Pravin
Gordhan, to answer questions about the granting of early retirement to former
SARS acting Commissioner, Ivan Pillay, some politicians may prefer to ignore
this new evidence that Mkhwebane is not fit for office.
Gordhan has made powerful enemies within and outside the governing party,
partly because of his haughty manner, but largely because of his ruthless
clean-up of state-owned enterprises which has the looters and their political
backers running scared and fighting back.
In a recent column, Daily Maverick's Professor Balthazar delves into the
politics of the matter, pointing out that the Public Protector recently told a
court that she had not investigated senior politicians like Ace Magashule
implicated in the looting of public funds in the Free State because of a
complete lack of resources, yet has funds to pursue a case that, at best,
appears to be inconsequential and legally weak.
However, I will leave the politics of the matter to others and, instead, will
focus on the legal issues surrounding the latest moves against Gordhan to
illustrate that the Public Protector is still struggling to grasp the extent
and limits of her powers and continues to act in ways that cast doubt on her
honesty.
In response to criticism of her recent move against minister Gordhan by some
of minister Gordhan's supporters, her office tweeted that she had written to
minister Gordhan four times between February 2018 and July 2018, requesting a
response to the allegations levelled against him.
"When the responses were not forthcoming, she issued a subpoena."
As it turns out, this claim was at best misleading and at worse false. Tebogo
Malatji, minister Gordhan's lawyer, pointed out that he had responded to the
Public Protector on behalf of the minister, asking to be provided with the
particulars and evidence of the alleged dishonesty and impropriety on the part
of minister Gordhan that is being investigated.
Section 7(3)(a) of the Public Protector Act states that the Public Protector
may, at any time prior to or during an investigation, request any person to
assist her with an investigation.
The Act does not impose a legal duty to respond to such requests by the Public
Protector, but sections 23 to 25 of the Rules Relating to Investigations by
the Public Protector and Matters Incidental Thereto do purport to impose legal
duties on state officials to co-operate with the Public Protector. However,
these rules were promulgated in September 2018, which means they were not in
effect when the Public Protector requested the minister to respond to
allegations made against him and do not apply in this case.
The main weapon the Public Protector has at her disposal to obtain evidence
from a witness or from an implicated person is her power to subpoena
individuals. This power does not relate to preliminary investigations and
cannot be used to force an individual to testify before a decision is taken to
start a proper investigation. However, it is clear from sections 20 and 21 of
the rules quoted above that the Public Protector may conduct a preliminary
investigation - although her powers during this stage of the proceedings are
limited.
Nothing in the Act or the rules permit the Public Protector to subpoena a
witness during the preliminary investigation and limits it to cases where the
Public Protector is in fact "conducting an investigation". Once a decision is
made that a full investigation will be conducted (after a preliminary
investigation), the Public Protector can use her power of subpoena to great
effect.
This power is contained in section 7(4)(a) the Public Protector Act (read with
section 5 of the Act) and empowers the Public Protector "to direct any person
to submit an affidavit or affirmed declaration or to appear before him or her
to give evidence or to produce any document in his or her possession or under
his or her control which has a bearing on the matter being investigated".
Section 5 states that:
"A direction referred to in subsection (4)(a) shall be by way of a subpoena
containing particulars of the matter in connection with which the person
subpoenaed is required to appear before the Public Protector and shall be
signed by the Public Protector and served on the person subpoenaed either by a
registered letter sent through the post or by delivery by a person authorised
thereto by the Public Protector."
As the subpoena power is a powerful weapon that could easily be abused,
certain safeguards are built into the Act to protect individuals against the
potential abuse of power by the Public Protector.
Thus, section 7(8) of the Act states that any person appearing before the
Public Protector after being subpoenaed may be assisted at such examination by
an advocate or an attorney "and shall be entitled to peruse such of the
documents or records... as are reasonably necessary to refresh his or her
memory". This right to peruse documents before appearing before the Public
Protector is confirmed by section 16(4) of the rules.
This is where it gets odd. The Public Protector has claimed that her
engagement with minister Gordhan is a "preliminary investigation" and that
"her office has no evidence implicating minister Gordhan of any wrongdoing".
In her most recent press statement she states that "he investigation into the
alleged conduct of minister Gordhan is therefore at a preliminary stage",
which is (deliberately?) ambivalent as it could either mean that no decision
has been taken to actually investigate minister Gordhan (and this is just a
preliminary investigation to decide that), or that the formal investigation is
proceeding but is at a preliminary stage.
Be that as it may, either the Public Protector lied when she claimed this was
still a preliminary investigation, or she has abused her subpoena power by
forcing the minister to appear before her in a matter that is still at a
preliminary stage and on which she has no evidence of wrongdoing on his part.
If this is a preliminary investigation as the Public Protector claimed, she is
not legally permitted to subpoena the minister to force him to answer
questions. It would constitute a grave abuse of power for her to use her
subpoena power if she has not completed a preliminary investigation yet.
She is also not permitted to subpoena the minister without providing him with
particulars of the allegations against him and all relevant documents on which
she relied to decide to proceed with an investigation.
This is an important safeguard to prevent the Public Protector from abusing
her subpoena power to go on a fishing expedition. If you do not know what the
allegations are that you are being investigated for and if you are not
provided with the relevant documents on which the Public Protector relied to
make a decision that a full investigation was warranted, the subpoena power
could be abused to harass and humiliate individuals who may not be implicated
in any wrongdoing at all.
It is therefore clear from the Act and the relevant rules that the Public
Protector is not permitted to subpoena the minister to force him to answer
questions under oath unless she has decided to investigate him. If she has
decided to investigate him and subpoenaed him, she is legally obliged to
provide him with the particulars of and evidence of the alleged dishonesty and
impropriety for which he is being investigated. If Mr Malatji is correct that
this information was never provided, the Public Protector is in breach of the
legislation governing her office.
There is one further unseemly twist to this sorry saga. After Mr Malatji
pointed out that it was false for the Public Protector to claim that no
response was forthcoming from Gordhan after the initial request, the Public
Protector further muddied the waters by issuing a statement that looks
suspiciously as if it was drafted with the specific aim of misleading the
public.
In her follow-up statement she again states that "the minister failed to
provide the Public Protector with a response to these allegations as requested
in the preceding correspondences". This claim is misleading as the minister
did respond to the request, albeit through his legal representative. The
statement contains the following paragraph that appears to be aimed at fudging
the issue and to cover up the initial misleading statement:
"Regarding the use of attorneys and advocates during appearances before the
Public Protector, the law provides for legal assistance and not legal
representation. This means that attorneys or advocates cannot speak on behalf
of the person appearing before the Public Protector."
This is an odd claim for a lawyer to make because it appears to state the
obvious. A bit like a professor making a statement that a student only passes
a course if she obtains a pass mark.
Legal representatives do not testify on behalf of their clients. They
represent them, among other things by corresponding on behalf of their
clients. To the extent that this non-sequitur was included in the statement to
suggest that minister Gordhan's lawyer was not legally entitled to correspond
with the Public Protector on behalf of his client, the statement is
deliberately misleading.
It may well be read as a ham-handed attempt to create the false impression
among ordinary citizens not versed in the law that minister Gordhan's lawyer
was not permitted to respond to the Public Protector on his behalf and hence
that the initial statement from the Public Protector that "responses were not
forthcoming" was not the outright lie that it may appear to have been.
I have no idea what will come of this investigation, whether a finding will be
made against minister Gordhan, or whether a court will review and set aside
any such finding. Neither can I say with absolute certainty that facts may not
be uncovered to implicate minister Gordhan in wrongdoing of some sort. But
what I can say with firm conviction is that the Public Protector has been
acting in an unprofessional and less than honest manner in pursuit of the
minister. DM