Black Lawyers Association statement against attempts to undermine the office of the Public Protector

1. The Black Lawyers Association has noted the attacks directed at the office of the Public Protector by various individuals and organisations. This attacks have intensified after the handing down of the judgment in the case of Democratic Alliance v The Public Protector and Council for the Advancement of the Constitution V Protector which was handed down on the 20th of May 2019.

2. Whilst we acknowledge the right of every individual to criticize state and non-state institutions as a fundamental right on which our hard won freedom rests, we think that such criticism must be measured and reasonable as opposed to being partisan and driven by ideological connotation.

3. The truth of the matter is that the Pretoria High Court, through Tolmay J in which the finding and the remedial action of the Public Protector regarding the Vrede Dairy Farm project have been reviewed and set aside. Equally true is the fact that the Public Protector has publicly indicated her intention to take this judgment on appeal as she is entitled. We are not sure whether she has done as yet, we know she is accorded time to consider the judgment and take it on appeal if she wishes so, through an appropriate application.

4. No one knows what the consequences of such an appeal will be, all we know at this stage is that the Public Protector has publicly declared her intention to take that decision on appeal and that the rules of the court still allows her time to do so. It is rather unnecessary and premature for institutions that have a professed objective of protecting and advancing the constitution to castigate the office of the Public Protector and the incumbent of the office as if she has already been found to be unsuitable for the office and the role of the Public Protector.

5. We further note that Parliament has been approached to initiate an inquiry through the appropriate officials regarding the fitness of Advocate Mkhwebane to occupy the office of the Public Protector. This too does not suggest that Parliament in the exercise of its crucial mandate has finally found that she is not fit to occupy that office. Restraint and caution would assist all concerned and importantly it would serve the crucial task of due process and allow both the judiciary in the case of the review and Parliament in the case of the inquiry to do their work without any undue influence.

6. We are troubled and concerned in particular by today’s opinion piece by one Mpumelelo Mkhabela in the News 24 electronic publication. Mr Mkhabela has declared that South Africa does not have a Public Protector. Again, we wish to declare upfront that we have no problem with the exercise of the right to freedom of expression by anybody including Mr Mkhabela, but we are of the view that statements such as the one contained in his opinion piece may permanently damage the image of the Public Protector in the eyes of the public and may unduly influence the current processes that are underway both in Parliament and the judiciary.

7. It seems unpersuasive to us to suggest that Adv Mkhwebana is unfit to be a Public Protector only because her findings have been successfully reviewed. There are judges whose judicial findings have been set aside by higher courts, it must be, then that such judges are no longer fit to be judges if we apply the same standard and there is every reason that we must. To us, judicial findings as made against the office of the Public Protector demonstrate the checks and balances available in our constitutional democracy and are far from indicating an incapacity to perform duties on the part of the public protector.

8. We therefore call for restraint and cool heads in all engagements about, and with, the office of the Public Protector. We also call for the president to leave up to the oath of his office which requires him to protect and promote the constitution and oppose all that may harm it. The constitution includes all its institutions including the office of the Public Protector.