Minister’s repudiation of PP out of line

The fact that the minister of public works, Gwendoline Lindiwe Mahlangu-Nkabinde has critisised the Public Protector in public on a report made to cabinet creates a constitutional crisis, member of parliament Smuts Ngonyama writes in a statement on the matter.

I am a committed constitutionalist. I am particularly proud of our South African Constitution. In the last fortnight, when the Public Protector made public her report on the Sanlam Middestad lease, South Africans felt justifiably proud that the Public Protector was acting independently and in keeping with the responsibilities of her office. The Public Protector's Office showed that it took its constitutional mandate seriously. It also showed that its allegiance was only to the Constitution.

The rejection of the Public Protector's report by the Minister of Public works, after she had had an opportunity to study the report and make her comments, raises a very thorny constitutional question: can a Minister publicly repudiate the Public Protector?

The report, we must remember, was to the cabinet and the report as I understood it gave all parties time to make a studied response. Thereafter, when the report became public, it was understood that all parties would comply with the recommendations.

Now that the Minister is rejecting the report in public, a constitutional crisis has arisen.

In my view either the recommendations are carried out or the matter should be referred to the Constitutional Court for adjudication. The Constitutional Court should examine a number of troubling issues coming out of this investigation and subsequent events.

Firstly can any Department renege on an undertaking given to the Public Protector?  In this instance I am referring to the pledge by the Department not to proceed with the lease while the matter was "sub judice", as it were. The Department breached that promise. A precedent, therefore, has now been created and the Court should rule on whether any department can act unilaterally and willfully defy what was mutually agreed upon by the Executive with the Public Protector or any other Chapter 9 institution for that matter.

The second matter is that of ignoring expert legal advice. In this case the Minister ignored two sets of expert legal opinion. If legal advice, obtained at considerable cost, is not properly considered and rejected what should be the consequences for any member of the executive? We need to take it one step and ask what if the action pursued by the Executive appears, prima facie, to be willful or illegal. To act illegally or willfully in a constitutional dispensation attacks the very foundation of constitutionalism.

The third issue is that of intimidating or attacking the Public Protector in the public domain. What should the Public Protector do if the police and the Minister mount a concerted campaign against her? Should she enter the fray and can she enter the fray? In the spirit and letter of the Constitution government is bound to carry out the recommendations of the Public Protector. Attacking the Public Protector goes entirely against the grain of the Constitution. In the present circumstances, where an impasse is being created, it would be appropriate for the matter to be referred to the Constitutional Court if government is planning not to carry out the recommendations at once.

The ruling of the Constitutional Court will not only resolve the present challenge to the Public Protector, which is getting worse by the day, but help to lay the ground rules of engagement between the police and the Public Protector on the one hand and the Executive and the Public Protector on the other, going forward.

It is understandable that in a regnant democracy, which is what our democracy is, our Constitution will be subtly and overtly challenged and not a single one of us must allow that to happen. Little drops wear away the rocks of time.

(Lulama Smuts Ngonyama MP, is COPE Head of Policy)