Dali Mpofu disses SA constitutional expert, preferring Zambia and Venice as legal beacons for Public Protector hearing

31 Jan 2023

When constitutional expert Hassen Ebrahim was called in July 2022 to give evidence at the Section 194 inquiry into suspended Public Protector Busisiwe Mkhwebane, her legal team dismissed his testimony.

Advocate Dali Mpofu, acting for Mkhwebane at the time, had cited Hassen Ebrahim’s UK and Botswana legal qualifications (Ebrahim had gone into political exile) as a reason the committee should dismiss his opinion.

Ebrahim is a former deputy director-general in the department of justice and constitutional development, with 25 years’ experience. He was called on the second day of the hearings in July 2022.

Read more in Daily Maverick: “Dali Mpofu fires both barrels at third whistle-blower in Mkhwebane hearing cross-examination farce”

On Tuesday, as the inquiry resumed, Adv Nazreen Bawa, for the inquiry, questioned Mkhwebane’s witness, Zambian public protector Caroline Zulu-Sokoni, who has been testifying since Monday on Mkhwebane’s behalf.

Zulu-Sokoni agreed with Bawa that she was not an expert on South African constitutional law.

Mpofu and Mkhwebane have called the current Zambian incumbent, who has occupied the position for almost 20 years, to set out a “context” for how the office of an Ombud or Public Protector should function, international principles and the importance of independence of the office.

Visit Daily Maverick’s home page for more news, analysis and investigations

Both Mpofu and Zulu-Sokoni relied heavily on the Venice Principles, drawn up by the European Union, to sketch the landscape in which an Ombud functions and what conditions should be present.

“Yes, I said the reason why I came to testify here after 18 years is because the institution of the Ombud in Africa has made great strides. It was important that I come here as well and contribute to ensure that the institution of Ombud continues to make progressive strides,” she replied.

Previously, Mpofu had suggested that Ebrahim was not an expert in “removal proceedings”. “Are you?” Bawa quizzed the Zambian Ombud on Tuesday.

“In removal, no. But where Ombuds are under threat, yes. I would consider myself an expert in Ombudsmanship… this would include any other issues that are incidental,” she replied.

Zulu-Sokoni agreed with Bawa that she would not be able to provide the sort of evidence Ebrahim had provided to the committee as “he has studied constitutional law and is able to give an opinion”.

She admitted that during her long tenure, she had only one “occasion” to look at Ombuds offices under threat, and this was as a member of the executive committee of the African Ombudsman and Mediators Association (AOMA) and the International Ombud Institute. Other than that, she had zero experience.

How did we get here?

Zulu-Sokoni told the commission she had been mandated by AOMA (of which Mkhwebane is part of the executive) “to make a presentation before this parliamentary inquiry”.

AOMA members had also been invited as observers at the inquiry last year. Bawa asked how this had come about.

“We had received a letter from the PP (Mkhwebane) requesting our intervention and this is why this matter came up at AOMA,” she replied.

She offered that, while Mkhwebane had not been at the meeting which had mandated Zulu-Sokoni to be present, “she was unhappy and she sought intervention of the AOMA”.

The current inquiry, Bawa reminded Zulu-Sokoni, had gone through a process in law which resulted in the findings by an independent judicial panel that Mkhwebane had a case to answer over misconduct.

Asked whether she had read the panel’s report, the Zambian ombud replied that she had not.

She later admitted she had also not read the court judgments that formed the basis of the complaints against Mkhwebane. It was the Constitutional Court that found Mkhwebane had been dishonest.

The Office vs the Incumbent

Zulu-Sokoni agreed that the process to remove an incumbent did not affect the functioning of the Office of the Public Protector and that the individual could not be conflated with the institution.

While on Monday Zulu-Sokoni stated that Mkhwebane, as the PP, should have been allowed to alter the Constitution to change the mandate of the Reserve Bank in her remedial action, on Tuesday she said the court’s rejection of Mkhwebane’s CIEX report should have been “a lesson learnt”.

Zulu-Sokoni said she was opposed to “personal costs orders” as “it would send a wrong message if the Ombudsman had to pay personal costs for respondent institutions”.

Bawa reminded Zulu-Sokoni that the courts had made three or four cost orders only, and asked whether she viewed the findings as “judicial harassment”, to which she replied she did not.

She agreed that South Africa’s Office of the Public Protector was one of the best-funded in Africa.

About Mpofu’s earlier statement that the AOMA or the Ombud Institute might “expel” South Africa, she replied that she was unaware of such a process and that this was “something they don’t take lightly”.

Questioned later by committee members, Zulu-Sokoni admitted that South Africa was a champion “of upholding human rights” and that the Public Protector South Africa was the “leading” Ombudsman in Africa. DM

Categories:

Tags:

DM is much better if you are signed in...

South Africa

How did we get here?

The Office vs the Incumbent