ConCourt should not waste its time entertaining Public Protector’s bizarre rescission argument

It is a truth universally acknowledged that any criticism of Public Protector Busisiwe Mkhwebane will be denounced by her die-hard supporters without them having read the criticism and without them attempting to engage with either the incontrovertible facts or the reasoned arguments provided by the critic. If Gustave Flaubert was correct when he said, “to think is to suffer”, their behaviour could perhaps best be interpreted as a superhuman effort to avoid any suffering.

To be fair, it cannot be easy to defend some of the actions of the Public Protector, who has been found to be dishonest and incompetent by various courts — including the Constitutional Court — in a series of scathing judgments in which various of her reports were reviewed and set aside.

Chief Justice Mogoeng Mogoeng, seemingly nursing his own persecution complex, did attempt a defence of sorts in his recent dissenting judgment in Public Protector and Others v President of the Republic of South Africa and Others, but only by making the astonishing claim that it “does not really matter” that the Public Protector relied on the wrong legislation, that had nothing to do with money laundering, to find that there was a reasonable suspicion that President Cyril Ramaphosa was guilty of money laundering.

As the vast majority of ordinary, relatively informed citizens — the kind who might actually consider reading an analysis like this — are well aware of the shortcomings of the Public Protector, another column highlighting the bizarre arguments advanced in the Public Protector’s recent application for a rescission of the Constitutional Court judgment mentioned above, might seem like overkill. But as I worry that this particular rescission application might be a symptom of a larger problem relating to the emerging unpredictability and uneven quality of judgments emanating from the Constitutional Court, and the decline in ethical standards within the legal profession in our current post-truth environment, I decided to explore the matter here.

The Public Protector’s rescission application targets the finding of the Constitutional Court that the Public Protector had “seriously misconstrued” section 2(3)(a) of the Executive Members’ Ethics Code when she claimed the section prohibited members of the executive from “deliberately or inadvertently” misleading the legislature, when the code in fact prohibits members of the executive from “wilfully” misleading the legislature.

The rescission application contends that the Constitutional Court wrongly relied on the version of the code adopted in 2000 which was, so it is claimed, repealed and/or amended by a new version adopted in 2007, which was “endorsed” by the Constitutional Court when it referenced the document in which the “new” version occurred in a footnote in its Nkandla judgment. The “new version” of the code was added to the Ministerial Handbook in 2007, but no one knows why this version contained wording not found in the legally binding code or how it came to be included in the handbook.

There are three serious problems with this contention. First, the claim is demonstrably false as the 2000 version of the code has not been repealed or amended. Section 2(1) of the Executive Members’ Ethics Act requires that any repeal, replacement or amendment of the code must be done via a proclamation by the president in the Government Gazette, but only after the president had consulted with Parliament on the matter.

As the president had not consulted Parliament on the “new” version of the code printed in the Ministerial Handbook, and as the “new” wording was never gazetted, the Ministerial Handbook version has no legal effect. Relying on the “new” version of the code would be like recognising as “legislation” a text that was never passed by Parliament and never became legislation, merely because the text was printed in a glossy government brochure.

(It should be noted that the Public Protector quoted three different versions of the section of the code in her report, one of the three — in paragraph 5.1.9 of the report — actually being the correct wording contained in the official 2000 code, suggesting — at best — that the report was not properly edited.)

Second, to the extent that the rescission application relies on the fact that the Ministerial Handbook was referenced in a footnote by the Constitutional Court in the Nkandla judgment, the argument is a legal absurdity. On the correct facts as set out above, the logic goes something like this: the Constitutional Court is bound by its (mistaken) reference to the Ministerial Handbook in a footnote in the Nkandla judgment because of the system of precedent. Although it referenced the correct code in its recent judgment, this in itself is an error that should be corrected by the court by undoing its correction of the error and endorsing its previous error instead. (If your head is spinning after reading this paragraph, you are not the only one.)

The third and most worrying aspect of the rescission application is that the Public Protector had admitted on 14 November 2019, in an affidavit to the high court in this matter, that the 2000 version is the correct and binding version of the code, stating as follows:

“The Public Protector has frequently dishonestly contradicted herself on this issue. She committed perjury by filing the two irreconcilable affidavits in her case against the President on 14 November 2019 and in her case against Minister Gordhan on 16 November 2019.”