By Paul Ngobeni
When the history of the ANC misrule in post-apartheid South Africa is written, the impeachment of the Public Protector will certainly be its Waterloo moment. Daily, there is a new revelation about ANC corruption which has direct damaging consequences in general on the functioning of our state institutions, and in particular on the administration of justice. Sadly, members of the judiciary have been ensnared into collaboration with the supposed New Dawn president Ramaphosa who has used state institutions to destroy his political enemies under the pretext of eradicating corruption and restoring public confidence in government institutions. Empirical evidence outlined here show that members of our judiciary have enabled capture of state institutions by Ramphosa-led faction of the ANC. What has ensued is corruption which decreases public trust in justice and weakens the capacity of judicial systems to guarantee the protection of human rights in general. That corruption has affected the tasks and duties of the judges, prosecutors, lawyers, and other legal professionals has also raised disturbing questions about the forthcoming impeachment of the Public Protector Advocate Mkhwebane.
Corruption has a multitude of faces. While most people equate corruption only with money crimes or bribery, there is political corruption, much more hidden and imprecise but just as insidious. Its broad range of action enables it not only to influence the judicial system, but all the sectors of state administration as well. As evidenced by the Public Protector’s case, specific judges have been appointed to her impeachment case and have produced scandalous reports which deny the existence of judgments produced by those same judges in other matters. This evolving scandal is like peeling an onion, one layer after another with no end in sight but its full exposure is likely to implode the ANC and expose it for all to see. Let us examine the evidence carefully.
On 21 February 2020, Mazzone, the DA’s Chief Whip, submitted a motion for the impeachment or removal of the Public Protector under Section 194 (1) of the Constitution. She alleged that the Public Protector should be removed from office for misconduct and/or incompetence. Acting with unseemly alacrity, then National Assembly Speaker Modise determined that the motion was in order and rapidly appointed a so-called independent panel chaired by retired Concourt judge Bess Nkabinde. The panel’s task was to conduct preliminary assessment to determine whether there is prima facie evidence that the Public Protector is guilty as charged. The Public Protector was prohibited by the NA rules from appearing in the panel’s proceedings through a legal representative. Amongst other things, the panel had to determine whether the Public Protector had committed “misconduct” and was “incompetent” because she had relied decided on a 2007 Executive ethics code when she found President Ramaphosa guilty of misleading parliament in the Bosasa CR 17 funding matter. The panel produced a shockingly erroneous and demonstrably false report which stated that:
The problem with the PP’s report is that she introduced [a foreign] element of “inadvertent” misleading of Parliament into the Executive Ethics Code and then relied on it. In reality the Code only prohibits the deliberate, willful or intentional misleading of Parliament.” Paragraph 209.1 of the Panel Report.
The panel stated further that “regarding the Executive Ethics Code, ..the PP showed a flawed conceptual grasp of the issues with which she was dealing. Her reasoning was muddled and difficult to understand.” Id. paragraph 209.8.2.
But
lurking behind the report was a much bigger scandal which is emblematic of how
our pliable judges can be employed to do the dirty job of the President or the
executive. The Panel simply
committed a “judicial” fib through its palpably false misreading of the code.
On 7 February 2007 President Mbeki introduced significant changes to the Code
of ethics. He published a new Ministerial Handbook: A Handbook for Members of the Executive
and Presiding officers (7February 2007) which was
approved by cabinet. This Handbook was provided to every member of the
executive at national and provincial levels and has been in use since 2007, and
was in use during the public Protector’s investigation of the Bosasa and CR17
funding matter. See, https://serve.mg.co.za/
In fact every Cabinet member and members of the executive Committees of provinces have been inducted on and have used the 2007 Code at least since 2009. The new code widened the prohibition considerably in that a new Section 2.3 of the Executive Ethics Code now expressly states that: “Members may not: “a. Deliberately or inadvertently mislead the President, or the Premier or, as the case may be; the legislature.” Ramaphosa was inducted on the 2007 Code when he became a deputy president of South Africa in 2014. So the panel’s conclusion that Mkhwebane “invented” her own code or introduced a “foreign element” of “inadvertent misleading” was a bald-faced lie. But its gets worse.
The Chairperson of the panel, Justice Nkabinde was a member of the Concourt justices panel that produced the “Nkandla” judgment. See,EFF v Speaker [2016]ZACC 11. There the Concourt unambiguously stated that “the President violated the provisions of the Executive Members’ Ethics Act7 and the Executive Ethics Code.8These are the national legislation and the code of ethics contemplated in section 96(1).” See, Para. 7 of the “Nkandla judgment.” Specifically, the Constitutional Court cited “ Chapter 1 of the Ministerial Handbook: A Handbook for Members of the Executive and Presiding officers(7February 2007) at pages 7-15”. See, footnote #8 of the (Nkandla) judgment. The Public Protector was indeed correct. Contrary to the Independent Panel’s unfounded and defamatory assertions, the 2007 Code is very explicit – on its own terms it prohibits “willful” and “inadvertent” misleading of the legislature. But Nkabinde simply disregarded her own judgment and accused Mkhwebane of falsely introducing a “foreign element” in the Code.
In the interest of probity and high ethics in public institutions and the judiciary we must ask the following pertinent questions: (1) why did Justice Nkabinde not disclose that she had been on the Concourt’s “Nkandla” judgment panel which relied on exactly the same 2007 code Advocate Mkhwebane relied upon? (2) why did Nkabinde not disclose that she had a conflict of interest in that she ruled as part of a court judgment that the applicable ethics code was the 2007 version but had suddenly changed course and ruled to the contrary when she was appointed to deal with Mkhwebane on the impeachment panel? (3) Why did Justice Nkabinde not recuse herself when she realized that the panel was dealing with the 2007 code matter which she had ruled on in the Nkandla judgment? (4) Given that the ruling which contained scurrilous and false allegations against Mkhwebane was based on the panel’s erroneous understanding of the facts and the law, what is the current status and impact of the panel’s report? (5) why should Mkhwebane be put through a torturous process of impeachment based on mendacity by a judge?
I am not suggesting that Justice Nkabinde could not have been genuinely mistaken – to err is human. But we must probe further into what strong incentive, inducement or gratification did Ramaphosa offer to force an experienced jurist of Nkabinde’s caliber to author a report endorsing Ramaphosa’s demonstrable lies and distancing itself from a court judgment in which the same Nkabinde was a deciding judge. How can Justice Nkabinde who participated in the Nkandla judgment and used the 2007 Code version now author a report that says that Mkhwebane was ‘incompetent” because she relied on the same Code the Concourt used in the Nkandla judgment? If the 2007 version is the “wrong” code does that render the entire Nkandla judgment null and void? Why would a judge so easily change her position and contradict her own judgment to advance the politically motivated agenda of constant ad hominem attacks on a Public Protector who used the same law that the Concourt used in Nkandla? As a corollary, how does judicial flip-flopping and the perception that judges alter their rulings and disregard legal principles depending on the person they are dealing with asiist our democracy?
Undeniable reality is that when Ramaphosa was a Deputy President and Gordhan served in the Zuma Cabinet, they both accepted that the applicable code was the 2007 version which was used by Madonsela and later Mkhwebane. All that changed when both Ramaphosa and Gordhan were found guilty of misleading parliament – they changed tack and argued that the favorable but superseded 2000 version of the Code must apply to their conduct and not the 2007 version relied upon by the Concourt. This was wicked clever because the 2000 version only proscribes Members of the Executive “willfully” misleading “ the legislature to which they are accountable.” But the 2007 Mbeki version, not Mkhwebane, added the words “may not willfully or inadvertently mislead.” Under the latter version both Ramaphosa and Gordhan are guilty even if they acted “inadvertently” when they misled Parliament. It is for that reason that they resorted to using an outdated law to shore up their phony defense and the obsequious judiciary obliged.
The sad reality of ANC thuggish behavior is that the Code was “correctly” applied when the courts were sitting in judgment over President Zuma but now the law had to change for Ramaphosa who insists that the 2000 Code of Ethics that President Mbeki had expressly changed should be bought back and applied to him. I take cognizance of former President Mbeki’s stony silence when a debate is raging over the existence of the very 2007 executive Ethics code he introduced. Is that indicative of how ANC politics is driven by anti-Zuma slant and not by fidelity to the constitution? Former president Mbeki knows to a moral certainty that he was the author of and did introduce the 2007 Code.
Why would a former President with integrity maintain silence when a black woman is being savaged amidst false accusations that she invented her own laws and introduced that same Code of Ethics introduced by Mbeki?
Another “jikanelanga” who has thrived in the conspiracy of silence against Advocate Mkhwebane is the former Public Protector Madonsela who is known for her antipathy towards Mkhwebane. For her entire tenure as a Public Protector Madonsela relied on the amended 2007 Code in conducting investigations, making findings, writing reports and issuing remedial orders. A few examples will suffice.
Madonsela
relied on the 2007 version of the Code in writing several adverse reports
against Ministers such as the late Minister Shiceka. See, (https://www.gov.za/sites/
In July 2021, the same Concourt that relied on the 2007 Code when dealing with Zuma suddenly changed its jurisprudence when dealing with Ramaphosa. See, Public Protector and Others v President of the Republic of South Africa and Others (CCT 62/20) [2021] ZACC 19. It claimed that amongst other things that the Public Protector seriously misconstrued the Cod (para.57); that “she thought that the Code prohibited members of the Executive from furnishing any and every piece of incorrect information, regardless of their state of mind and the objective they wished to achieve (para 58.) The Concourt went further and manufacctuured a demonstrable judicial lie when it proclaimed:
“But what is more concerning with the report is that the Public Protector changed the wording of the Code by adding “deliberate and inadvertent misleading of the Legislature”. (Paragraph 59).
The Concourt elaborated on its flagrantly false accusation by stating:
The Public Protector then changed the wording of the Code to include “deliberate and inadvertent misleading” so as to match with the facts. Having effected the change in the Code, the Public Protector proceeded to conclude that the President had violated the Code. It is unacceptable that the Public Protector did what no law had authorised her to do. Paragraph 60…It was the wrong approach adopted by the Public Protector here which led her astray. Instead of evaluating the President’s conduct against paragraph 2.3(a) of the Code, she measured it against a standard she had created…Para.61.
The Concourt concluded: “In this regard, the Public Protector’s finding on the misleading of Parliament issue is fatally flawed due to a material error of law.” Mkhwebane is now being lynched based on judicial mendacity –it is simply unprecedented in any jurisprudence for a group of nine justices to collectively lie about a clear piece of legislation and then accuse a public official of having changed or invented her own law.
One of South Africa’s best legal minds who taught in law schools in the UK and New Zealand, Advocate Richard Sizani, who is a former public service commission chairperson has confirmed that the 2007 Code had been used in government from its date of adoption to Ramaphosa’s administration. He confirms that the 2007 handbook which contains the Code was accepted as an official guiding document on government policy for more than a decade. The phrase “members may not deliberately or inadvertently mislead the president, the premier or, as the case may be, the legislature” is contained in the handbook. It is judicial lie to state that Mkhwebane invented the language explicitly stated in the Handbook or that she made up her own version. But that is what Ramaphosa’s ANC in cahoots with the DA is willing to use as a basis for Mkhwebane’s impeachment.
The discerning masses of our people will poignantly observe that the ANC which failed to amend the constitution to effect a land restitution program is now willing to work with the white-dominated DA to impeach Mkhwebane on the basis of false evidence concocted in collaboration with our judiciary. The masses are aware that parties such as the EFF, UDM, ATM, PAC etc. which champion the human rights of all South Africans have expressed support for the besieged Public Protector and have refused to join in the lynch party. It would indeed be a monumental spectacle to see long-serving ANC ministers and parliamentarians voting with the DA to impeach Mkhwebane on the allegations that she “changed” or “invented” a Code of Ethics they have used since 2007. Can such hypocrites who target a black woman on the basis of a lie be trusted with transformation of our society or should the masses give the other parties a chance to govern? To rehash evidence of judicial capture by the Ramphosa faction of the ANC is simply to paint the lily. It is undeniable and needs no further elaboration.
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