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25/03/2020 13:39:24
Picture: Flickr/Government ZA
Mkhwebane, the Public Protector we can't afford
This week the High Court in Pretoria yet again found that the Public Protector acted in bad faith (mala fide), that she failed to uphold the Constitution, was prepared to litigate recklessly and acted improperly in flagrant disobedience of the Constitution and the law.
“How long will this go on? Every time the Public Protector is in court it costs the taxpayer money and to what end? So that the courts can repeat the fact that our Public Protector is incompetent?” asks Advocate Stefanie Fick, OUTA’s Chief Legal Officer.
“Busisiwe Mkhwebane is an embarrassment to Chapter Nine institutions and to the South African public who should be able to look up to her leadership. We call on Parliament to find a way to deal with the Public Protector sooner rather than later,” says Fick.
OUTA has repeatedly called on Parliament to remove Mkhwebane from office and last year formally petitioned Parliament calling for an inquiry into her fitness to hold office. For more, see here.
The Pretoria High Court judgment arose from an application brought by SARS to declare that a SARS official is permitted and required to withhold taxpayers’ information in terms of the Tax Administration Act, and that the Public Protector’s subpoena powers do not extend to accessing taxpayers’ information.
The court stated that: “All these factors demonstrate clearly that the Public Protector either misunderstood the law or if she understood it, she simply ignored it. That shows the proclivity of the Public Protector’s to operate out of the bounds of the law. She has an inexplicable deep rooted recalcitrance to accept advice from senior and junior counsel. The Public Protector acted unreasonably, arbitrarily and in bad faith when she issued the 2019 subpoena.”
It is very interesting that the court also commented on the fact that Mkhwebane is an advocate and would thus apply the law.
This is what the court said: “One of the requirements she had to satisfy for her appointment as Public Protector was that she had to be an advocate. There was a reason for this requirement and that reason was that the expectations were high that she would understand the law and would apply it in her daily conduct. She would not adopt the devil-may-care attitude in the face of the law, advice and genuine legal opinion.” Despite sound legal advice, the Public Protector refused to accept SARS’s “just cause” refusal to make tax-related information available to her office and issued a subpoena, threatening SARS with criminal sanctions if officials did not comply.
The court’s comments are scathing: “If one casts a final look at the path that led to the Public Protector issuing the subpoena on 21 October 2019 the conclusion is inescapable that the Public Protector was irrational, unreasonable, acted unlawfully and had very little regard to the Constitution and the law.” Again, the court ordered the Public Protector to pay 15% of the costs in her personal capacity.
A copy of the Pretoria High Court judgment is here.