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To UCT/WITS/RHODES law graduates

Dear law graduates,

I’m sure that by now you have all seen the decision by the Judge President Dustin Mlambo regarding the report which he set aside of the Public Protector, Busisiwe Mkhwebane, pertaining to the CR17 campaign funds.
Mkhwebane in her CR17 report directed the National Prosecuting Authority (NPA) to probe and prosecute if necessary criminal actions arising from the CR17 fund transactions, and to take the necessary steps against Ramaphosa for misleading Parliament.

Well the finding of Mlambo that the Public Protector Mkhwabane demonstrated a lack of appreciation for her powers in relation to her CR17 fund report is inconsistent with his finding in a previous case he presided over namely, “President of the Republic of South Africa v Office of the Public Protector and Others (91139/2016).”

You will recall that Mlambo in “President of the Republic of South Africa v Office of the Public Protector” had already ruled on the powers of the Public Protector in an application brought by Jacob Zuma which questioned the scope of the powers of the Public Protector. On that occasion, Mlambo ruled against President Jacob Zuma in favor of the then Public Protector Advocate Thuli Madonsela, who also happens to be the darling of white monopoly capital (WMC).

More specifically Mlambo in “President of the Republic of South Africa v Office of the Public Protector” had dismissed the submission that the Public Protector, Madonsela, exceeded her powers when she directed in her remedial action that a commission of inquiry to investigate allegations of state capture must be instituted and the manner in which it must be implemented. Mlambo in that case clarified the binding power of the Public Protector’s remedial action. Moreover, the fact that the Public Protector’s powers extend to her instructing the President and other members of the Executive to exercise their constitutional powers where required, was also confirmed by Mlambo.

So basically in his previous judgement, “President of the Republic of South Africa v Office of the Public Protector”, Mlambo ruled that the Public Protector has wide ranging binding powers regarding her remedial action against President Zuma who said she had exceeded her powers. Then on Tuesday, in a subsequent case regarding another Public Protector (Busisiwe Mkhwebane) who is not liked by WMC, Mlambo ruled differently on basically the same argument by Ramaphosa as that advanced by Zuma in the previous case about the powers of the Public Protector.

It must also be pointed out that in ”President of the Republic of South Africa v Office of the Public Protector”, the Court (led by Mlambo) followed the precedent set in the case of the “Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11” – where the binding power of Public Protector’s remedial action was confirmed by the Constitutional Court (ConCourt).

In “Economic Freedom Fighters v Speaker, National Assembly” the ConCourt, led by Chief Justice Mogoeng Mogoeng, effectively ruled that the Public Protector’s remedial action was binding and to this end must be implemented. In this regard it held that:

i. “3. The remedial action taken by the Public Protector against President Jacob Gedleyihlekisa Zuma in terms of section 182(1)(c) of the Constitution is binding.”; and

ii. “4. The failure by the President to comply with the remedial action taken against him, by the Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.”

The reasoning of the ConCourt is instructive: Should the Public Protector’s remedial action be optional and could therefore be ignored, the Public Protector will have no legal standing and command no respect. Also the Office of the Public Protector is derived from the Constitution which subjects society to adherence to the Rule of Law.

The lawyers of the Public Protector Mkhwabane reminded Mlambo on Tuesday of his own previous decision on the matter. Lo and and behold Mlambo decided that the this Public Protector (Mkhwabane) doesn’t in fact have the same powers he had said the previous one (Madonsela) had.

I studied one year of law school and was bored by the legal principle called LEGAL PRECEDENT. I thought it was fairly stupid. And couldn’t do the whole Voet bullshit or whatever it’s called. Now here are my questions:

i. Was LEGAL PRECEDENT not set by the ConCourt in “Economic Freedom Fighters v Speaker, National Assembly” which Mlambo followed when he presided in ”President of the Republic of South Africa v Office of the Public Protector”?

ii. Can the same court (North Gauteng High Court) deviate from a precedent it previously followed? Is this not contemptuous of an established principle of law (PRECEDENT), if not the ConCourt itself, being the highest Court in the land.

Note that there was no application to the effect. The ConCourt had legally settled and to this end restored the powers of the Public Protector’s Office and its credibility. This means that the Public Protector’s findings and remedial actions (and that of other state institutions) are legally binding.

Mlambo just had amnesia, even after counsel for the Public Protector had so meticulously reminded him of his previous judgment on the matter.

I will wait for your learned responses. I thank you and have a great weekend.

Psst: I hear some of you don’t use your brains. You wait for Pierre de Vos and then say amen! I don’t want to believe this is true.


Andile Mngxitama

Andile Mngxitama is the President of Black First Land First (BLF), a radical black consciousness organization.

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