PP Inquiry day 48: Caroline Zulu-Sokoni
Committee on Section 194 Enquiry
30 January 2023
Chairperson: Mr Q Dyantyi (ANC)
Motion initiating the Enquiry together with supporting evidence
Public Protector’s response to the Motion
Report from the Independent Panel furnished to the NA
The Section 194 Impeachment Enquiry Committee in a hybrid meeting heard evidence from Ms Caroline Zulu-Sokoni, Public Protector of the Republic of Zambia, as the first witness for 2023 by the Public Protector’s legal team.
The PP legal team noted that this was one of the most important testimonies that would be given as it provided historical context about the importance of the ombudsman institution in democracies around the world and specifically Africa.
Ms Zulu-Sokoni testified that it was absolutely necessary when an arm of government was dealing with the ombudsman that procedural fairness must apply. This was because the ombudsman was in a very vulnerable position as it investigates the executive. which is the arm that is more most likely to erect barriers to ensure the ombudsman does not work effectively.
Ms Zulu-Sokoni testified that the office of the ombudsman was not intended to be the object of disciplinary or administrative censure by all three branches of government at the same time. This weakened the independence of the office. The model is that the tenure of the ombudsman should be for a prescribed time to ensure that the term of office is certain and it is not interfered with. Security of tenure prevents the unlawful or wanton removal of an office holder before they have finished the term of office. The 2019 international instrument of the Venice Principles, which ensure the independence and protect the integrity of the office of the ombudsman, was discussed at length.
Ms Zulu-Sokoni as Public Protector of the Republic of Zambia since 2004 was a clear proponent of public protector reports being regarded as recommendations rather than binding decisions. It was noted that the SA Constitution had not made that distinction but it was later decided in the 2016 Nkandla judgment that the report should be binding. She stated that it is evident that issuing binding decisions make the ombudsman amenable to review of his decisions by courts of law. The courts also seem to feel threatened by the judicial powers of the ombudsman and there's always a temptation by any one of the three arms of government to trim down the powers of the ombudsman, as evidenced by matters in Zambia and South Africa. Once the powers of ombudsman seem to overlap or to be shared by any one of the three branches inevitably the institution of the ombudsman may have to be reined in by the arm which feels challenged.
Ms Zulu-Sokoni pleaded with the Committee that South Africa was a constitutional democracy leader in Africa and set the example for ombudsmanship which other African countries followed. South Africa should be fighting the battle for ombudsmanship for the whole of Africa. If the Committee continued with the impeachment enquiry, what message would South Africa be sending to other African countries? The reason she had appeared before the enquiry was she felt that she could not allow ombudsmanship in Africa to go backwards.
Chairperson: Thank you very much. Good morning and welcome, everybody. Happy 2023 to all the Members here at M46 and on the virtual platform. I want to welcome the Public Protector and her legal team to the resumption of our enquiry. You're welcome Public Protector and your legal team. To also acknowledge our evidence leaders, Adv Bawa and Adv Mayosi. To welcome members of the media with us as we start our session in 2023. The entire support staff. And a special welcome to members of the public who probably would have had felt a very long holiday and break. Couldn't wait to restart. We are back. But let me also acknowledge, and I hope that, we will acknowledge Ms Sokoni who would have been with us in our last session. You would have taken an oath. You're still under oath. We're not going to repeat that. Thank you very much and welcome. Today, dear colleagues, as we ended on 5 December, we are resuming our enquiry. And we're still under the leadership of the Public Protector legal team in leading evidence of the remaining witnesses. I'm now going to take this opportunity to invite Adv Mpofu to resume the leading of evidence with Ms Sokoni, who would have been with us at the start of this enquiry. Quite a coincidence. And I hope that as Adv Mpofu starts, I see quite a number of other guests joining. I’m not in a position to say who they are. He will be able to indicate that, but you all welcome. Thank you very much. I can see he's still busy on social media. Over to you, Adv Mpofu.
Adv Dali Mpofu: I missed that, Chairperson. Okay. Thank you. Good morning everyone, Chair. Good morning, everybody. Good morning Chairperson and good morning Members, everyone, evidence leaders.
Chairperson: My apologies. Just a pause, Adv Mpofu. I forgot to indicate, colleagues, that we have Ms Sokoni for today and tomorrow. And today will be a day dedicated and to the Public Protector team. It will start now until the end of the day. So, to indicate that if he doesn't need that, it will be a very good sign. We would then start tomorrow with evidence leaders half a day and conclude with the Members at the end of the day. You're indicating that you don't need such long…much time?
Adv Mpofu: Chairperson, I'm sorry to disappoint you. No, I’m indicating that I might need more time, Chairperson. But we can maybe offline, you and I drink tea. We'll talk about it and see if we can find each other. But on a serious note, Chairperson, it's my assessment that we might even have to spill-over, as I indicated in the letter, maybe to Wednesday, obviously, it's not as a target. But we’ll talk over teatime. I was just saying that I hope everyone had a good break. And I'm sure those were in the conference, that the conference went well. And we are here to start on a fresh start. So, Chair, if I may, if you just give me one minute. I had indicated to you via correspondence that there were certain issues that I wanted to address, which in our backroom meeting with the evidence leaders we had hoped would save us a lot of time. Not necessarily today or tomorrow, but I'm talking in general. You indicated in your letter, Chair, and I suppose that's confirmed by what I've just said about the witness maybe even having to take longer that. So, I'm in a way agreeing with your approach, Chair, which was that such matters, insofar as they're not directly involved in this particular witness can be dealt with at the end of her evidence. So we will follow that wise approach from the Chair, so that even if we spill over we don’t over-spill, so to speak. So therefore, Chair, we will immediately start with the business of the day and then we'll deal with our domestic issues once our guests have finished their business. Now Chair, you correctly indicated that we have, one can say in the world of public protectors or ombudsman – as the institution is known internationally. Today, we have the ombudsman royalty with us and, as you indicated Chair, I'll introduce them. The first person I’ll introduce is the one just next to me, that is Hon Florence Kajuju. As you indicate, she was here earlier in the proceedings. She is an advocate herself. She's from Kenya. And she's the former Vice-Chair of LSK. I'll find out just now what that means. And the most important hat – she has many, many hats – but the most important one is that she's the President of the IOI which is the international body that effectively more than 140 countries now affiliate to. She obviously herself has experience in this field. And we are deeply honoured. We also were pleasantly surprised when she indicated that she could come today to give support to Hon Sokoni. She’s not alone. She’s with Ms Mercy Wambua, sitting next to her. She's the Executive Director of AOMA, which is the African version – it's the continental body. We'll talk about these structures when we lead the evidence, Chair, in more detail. And she's also the CEO of CAJ and the executive director as we all know in those structures is the person who runs the operations, basically the CEO. Then of course we have Hon Sokoni who is the Public Protector of Zambia, but also wearing her cap as representing AOMA. Although she’ll also touch on the comparative issues of the Public Protector of Zambia, as indicated in the statement. And then of course, last but not least, we have the Public Protector of South Africa, who is an active participant in all those structures and is an esteemed colleague of these. It looks like, Chair, a lot of us can learn a lot from these organisations, not just about the ombudsman but also about women empowerment.
Chairperson: Thank you. You are all welcome, both in South Africa and at this enquiry. Thank you very much. Thank you, Adv Mpofu.
Adv Mpofu: Thank you, Chair. Yes, as you indicated, Hon Sokoni has already been sworn in. So, this is the part where we deal with the formal evidence. Good morning, Hon Sokoni.
Ms Caroline Zulu-Sokoni, Public Protector of Republic of Zambia: Good Morning.
Adv Mpofu: How are you, today?
Ms Zulu-Sokoni: Fine, thank you.
Adv Mpofu: Okay, if you can try and speak up or closer to the mic.
Chairperson: There are two mics there. Is there a mic that side?
Ms Zulu-Sokoni: So, you'd like them to both be on?
Chairperson: You’d be looking at him most of the time. Or is there just one mic? Yes. So, that we don't finish the day with a sore neck. Thank you. I hope it will work.
Ms Zulu-Sokoni: Actually I think it doesn't make a difference.
Adv Mpofu: Are you well, madam?
Ms Zulu-Sokoni: Yes, very well. Thank you.
Adv Mpofu: Thank you. Welcome back, as the Chair has indicated. I just want to firstly to indicate, and I'm sure it’ll be clear very soon after a few questions the importance….
Chairperson: Just pause Adv Mpofu. We want her to be as comfortable as she can be. Can you shift the chair towards that other mic.
Adv Mpofu: Thank you. Is that comfortable?
Ms Zulu-Sokoni: Yes. Yes. Thank you.
Adv Mpofu: Alright. I was saying that it will become clear after a few questions that this is possibly one of the most important testimonies that will be given to this Committee, because it's going to give us context. And you and I as lawyers, we know that the catch phrase that says context is everything. So you're going to be giving us the historical context and the specific context of this important institution of democracy around the world. Now, I want to start by just going back in time, because you were here with us before and remind you that we had the very first witness. I don't know if you were here for that witness or you were only here for Mr Samuel. But the very first witness who testified here was a gentleman called Mr Ebrahim who, in a way, at least promised to give us some of the context that you are giving us. But it turned out that he said himself that he was not an expert. So, that was the end of his usefulness for this purpose. But more importantly, he also said something which I would like to pose to you as the first question. He said, there are no experts in this field of ombudsman. He was trying to justify why he's just a constitutional expert, but there are no real experts. Is that true?
Ms Zulu-Sokoni: The institution of the ombudsman has existed for over 200 years. There's a lot of jurisprudence in that area. There's a lot of books that have been written on ombudsmanship. So we have a number of experts in Africa. We have our own Prof Ayeni. We have former ombudspersons, like Justice Florence Mumba of Zambia, who has written a number of articles in a number of books regarding ombudsmanship. We have Prof Linda Reif, who has written a number of books on ombudsmanship. And there's a plethora of papers that have been written by a number of ombudsman at different international ombudsman institute conferences, as well as African Ombudsman and Mediators Association conferences. So, I think that's my submission on that question.
Adv Mpofu: No, thank you. I’m sure Mr Ebrahim was not deliberately misleading us or the Committee. But I think that statement just underscores the fact that he, of his first admission, that he himself was not an expert in the field. Otherwise, he would have been aware of those African and international experts in the field, correct?
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: Thank you. Alright. Well now that we have a real expert, we can then try and demonstrate the extent of your expertise in this field, and I will take you immediately to your statement. Which is 213, I think. Sorry I'll ask my colleague to help me to identify this. I know that the affidavit is bundle H. Is 31.3? Am I right? Maybe, just so that we don't go word for word on this. Just to explain to those people, unlike the Members who have seen the statement, just to explain to anyone else that the structure of your evidence is that you've given a short affidavit to which you have attached quite a detailed statement. And so we'll go through the affidavit just to really put everything in its proper context, but most of my questions will emanate from the statement itself. So, could you then just give the Committee, briefly, your academic qualifications first.
Ms Zulu-Sokoni: I have a Bachelors of Laws degree. I have a Bachelor of Laws degree from the University of Zambia and a Master's of Law degree from the University of London. I have been ombudsman in the Republic of Zambia for the last 18 years, from 2004 to the present.
Adv Mpofu: Sorry, from 2004?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: So, next year you will be 20 years in the office?
Ms Zulu-Sokoni: Yes. I have served as AOMA Regional Coordinator for Southern Africa. I served in that position for four years. I then served as AOMA Treasurer for two years. And subsequently, I was also elected to the International Ombudsman Institute to sit as Director on the Board of Directors. I served as IOI Africa Director again for four years. And I currently serve as the IOI Treasurer, that is the International Ombudsman Institute Treasurer. The International Ombudsman Institute is the world body of ombudsman institutions. And its secretariat is housed in Vienna, Austria by the Austrian ombudsman. And the African Ombudsman and Mediators Association is the Africa wide association of ombudspersons. It has been in existence since, formally since 1995. Formally, yes.
Adv Mpofu: Okay. That's good. So it would be safe then to say that you have served the institution and I mean, broadly, the ombudsman institution for a long time, at a national level, at a continental level, as well as an international level?
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: Thank you. And you have held the position, some of which you have mentioned now and others, which are covered in your statement?
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: All right. Now, can you then just tell the Committee briefly about AOMA and IOI? You know, just briefly, what do they stand for? Not the letters, well you can also tell us about the letters IOI and AOMA, but broadly what are those bodies? I think we will have a fair idea of what the Public Protector of Zambia may be, because it's not much different to ours, and we will deal with the comparisons later. But those other institutions, if you can just introduce them to the Committee.
Ms Zulu-Sokoni: Thank you so much. The International Ombudsman Institute was set up in as way back as I think 1991. And it was established in order to standardise the operations of ombudspersons worldwide. Also to ensure protection for the institution of the ombudsman, because it is a very unique institution. It is not like no other human rights institution, because by its design it is intended to investigate the very institutions that create it. So it was felt necessary to ensure that there was sufficient protection for the ombudsman in its operation, and also to have international recognition from the United Nations and other international regional bodies to extend the appropriate protection and to establish appropriate standards for the operation of the ombudsman.
Adv Mpofu: That is the IOI.
Ms Zulu-Sokoni: That is the IOI.
Adv Mpofu: AOMA?
Ms Zulu-Sokoni: For the African Ombudsman and Mediators Association, they actually were started operations initially by establishing a research institute at the University of Dar es Salaam. And when there Institute of the Ombudsman in Tanzania became a hybrid institution investigating maladministration as well as human rights, it was felt that it was necessary to move the institution of the ombudsman to a jurisdiction which was more, reflecting more of classical ombudsman style. So that was the time I think, in 2005, that there was an African Ombudsman Association meeting. Because initially, the institution was called the African Ombudsman Association. So when we met at Misty Hills in Johannesburg, it was there that the African Ombudsman Association was transformed to the African Ombudsman and Mediators Association, to try and embrace also French-speaking Africa, because in French-speaking countries the institution of the ombudsman is known, they refer to it as the Mediator. So the name was transformed from African Ombudsman Association to African Ombudsman and Mediators Association, and the constitution amended. And it was at that point, actually, that we also started talking about the need to have standards because it was noticed that there were a lot of ombudsman institutions that were not being properly recognised in their countries. They were not being accorded the proper protections. And it was at that time that we started the discussion of the issue of drafting standards as to what sort of ombudsman institutions we needed in a constitutional democracy in Africa. A lot of the countries were establishing hybrid ombudsman institutions, and when I talk about a hybrid ombudsman institution, like I said, in Tanzania, they had to move away from Tanzania to South Africa, because Tanzania had a hybrid ombudsman institution. A classical ombudsman institution has a single mandate, that is the investigation of maladministration. And it is accountable to the legislature. And thirdly, and most importantly, its reports have the force of a recommendation. They are not binding. Yes, please.
Adv Mpofu: Thank you very much. And you'll forgive me, I'll be jumping between your statement and affidavit so that we save time. If you touch on something, which I was going to touch on later, I'll wrap it up now so that when we get to that stage, we don't have to redo it. And I'm saying that apropos your statement, which you just made now about French Africa. And so we might as well just deal with the terminology upfront, because I'm sure some people who are not familiar with this field, which is new to us, you know, we're a young democracy, but sometimes we think highly of ourselves. But, you know, we might assume that people know that ombudsman means the same thing as Public Protector, and so on. So I'll take you directly to paragraph 12 of your statement, which you will find at 31.3.2. And while they're putting it up, let me just ask you this question. It is indeed so that ombudsman is a generic term, and each country uses whatever term pleases them, but they all fall under the generic description of ombudsman. And we'll get into the history, but can you just confirm that?
Ms Zulu-Sokoni: Yes, the term ombudsman is a Swedish term.
Adv Mpofu: Swedish?
Ms Zulu-Sokoni: Yes. Meaning a defender of rights or a people's protector. Yes. So different jurisdictions have then embraced the concept of the ombudsman. It is an institution that is for the vulnerable or the least person who needs to hold government to account when an injustice has been occasioned against him. So it therefore became necessary, different jurisdictions recognised that we have to, in order to entrench this concepts in our jurisdictions, the people have to own it. And the people can only own it if they understand the term that you're using to call this very important office. In French-speaking countries, they refer to this office as the Mediator. But I am aware that they do translate it into local languages as well, places like Senegal, the Gabon, for people to understand. At the same time some countries like for instance, those which have merged the mandates, like the Inspector General of Government in Uganda. They refer to the ombudsman as the Inspector General of Government. In Angola, in Portuguese-speaking countries they call it the ‘Provedor de Justiça’ meaning the provider of justice, but I must state at this point that the concept of the ombudsman seems to have some sort of different impacts in civil law countries and in common law countries. So in the civil law countries, they have they refer to judges, as a judge investigator. Because judges in the civil law countries tend to go out and investigate, carry out interviews, collect the evidence and then this is when they sit to actually hear the case. Whereas in common law jurisdictions, a judge is an independent arbiter who hears both parties and after he has heard both parties, he comes to a conclusion. He is not a part of the collection of the evidence. I think that even the Scandinavian countries had that sort of background. And when they were establishing the office of the ombudsman, they were establishing the office of a judge investigator. They gave this office the power of a judge investigator. So you find that when our colleagues in French-speaking countries are called the ombudsperson, the status of a judge. I do recall that at one time in Zambia, we hosted a training for French and English-speaking countries, and recall the Chief Justice as the guest of honour and they were saying no, but in our country, the ombudsman the Mediator is senior to the Chief Justice or on par. So this is from the civil law point of view, but when you come to the common law countries, this concept of the ombudsman being on the same status as a judge is not taken as so. I think even for countries like the United Kingdom they have to grapple with the same issues. Just a small difference. Just a bit of information about the office. There's so much confusion and this is the reason there has been a growing need, you're seeing a growing body of international instruments, the Venice Principles, the OR Tambo Declaration, the flurry of UN resolutions to try and see if they can find a middle ground to ensure that this office is properly established…standardised.
Adv Mpofu: Okay, thank you. I was laughing because I would have preferred you to tell the story in its original form. Don't be diplomatic. When you told us the story you said, when you invited the Chief Justice, one of your colleagues said why did you invite your junior. Isn't that how it happened?
Ms Zulu-Sokoni: Well, if my recollection is correct.
Adv Mpofu: Yes, thank you. But it shows, on a more serious note, the point you're making that different jurisdictions have different models. But the general principle is the same, correct?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And just a little bit of trivia, because we all don't want to be sexist. We all get into the habit of saying ombudsperson, but I was told some years ago that's actually wrong. Because the man in ombudsman doesn't mean a man. Ombudsman is actually a translation of Swedish, the Swedish language, which as you correctly say, means the defender of rights or the people's protector, correct?
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: And therefore, we can be proud I think, as South Africans and Zambians, that we probably have to the closest translation of the original word ‘ombudsman’, in people's protector or public protector, correct?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And that paragraph that I wanted to show you, paragraph 12, just covers some of the information that you've given us, where you say, I'll just read it out for progress Chair. You say, over time several countries have established the ombudsman institutions in Africa, albeit under different names. In French-speaking countries in Africa, Francophone, the office of ombudsman is referred to as ‘Médiateur de la République’, which means the Mediator of the Republic. Whilst in Portuguese speaking African countries, it is called ‘Provedor de Justiça’, which means the provider of justice. In Uganda it is called Inspector General of Government. In Kenya and Tanzania, the Office of ombudsman and named as a commission for administrative justice. And you say, according to Professor Ayeni, one of the experts you referred to earlier, countries choose organisational names other than ombudsman to communicate the purpose of the organisation and give the institution an identity that citizens of the countries concerned can associate with. So that captures the information you just gave us.
Ms Zulu-Sokoni: Yes, thank you.
Adv Mpofu: Thank you very much. All right. Now, going back to your affidavit and the credentials, per se. You have also given an indication of a structure called AORC, African Ombudsman Research Centre, with which you are associated. And I think all three of you, public protectors and leaders in that space associated with it. What is that Institute? I'm singling it out because it happens to be based here in South Africa, and you can also tell us how that came about.
Ms Zulu-Sokoni: Thank you so much. When the Research Centre was moved from Dar es Salaam, to South Africa, it was found necessary to establish a formal secretariat for the institution of the ombudsman. And as we were establishing this secretariat, it was felt that it should also be established in such a way that it can be sustainable, it can be a self sustaining institution… secretariat. So, it was thought that there was need if it was going to be self sustaining, it was going to be carrying out research, carrying out consultancies. Then we needed to establish an institution which was sort of like separate but still under the arm of AOMA. So it was then decided by the African or the Executive of the African Ombudsman and Mediators Association to establish AORC, as a research institute with corporate legal personality. So it was then established in 2011, as a research and training arm of AOMA. And it has a board, and this board is chaired by the Public Protector of South Africa. In a way it mirrors the International ombudsman institution, except that the International ombudsman institution did not establish a separate research arm. But the chairperson of the AORC is permanently the South African Public Protector, just as the Permanent Secretary General of the International Ombudsman Institute in Vienna, is the Chief Ombudsman of Austria. So the AORC has entered into various Memorandums of Understanding with the different organisations. Chief among them is the cooperation which it has entered into with the International Ombudsman Institute. By entering into this cooperation with the IOI, it has been hosting conferences for training the whole of Africa, African ombudsman staff and African ombudsman themselves. And it has also, during the Covid era, I'm proud to say AORC was the most active ombudsman centre in the whole world. I think it was hosting webinars almost every month. And these were attended online by ombudsman institutions from each and every continent. Now, why the AORC is also very, very important is that with the secretariat being registered here in South Africa, we were able to also harness cooperation with the South African Government which has been actually funding the AORC. And if it was not for all the inputs and the sacrifice of the South African Government, the AORC would not have been able to have such a big impact, not only on the African continent but internationally as well.
Adv Mpofu: Thank you. Thank you very much. And I think the parallel with South Africa, the role that South Africa plays is the same as the role that Austria plays at the international level. Can you explain that briefly?
Ms Zulu-Sokoni: Yes, the Austrian Government has accorded the International Ombudsman Institute support, in that it pays for the staff who man the secretariat of the International Ombudsman Institute. And as well as that, it also has given a budget to the IOI. All the members of the IOI pay a subscription to the secretariat. And from those subscriptions, that money is used only for training and for regional activities to improve and encourage ombudsmanship in regions throughout the world. The IOI has five regions. Africa, North America, South America, Latin America and the Australasian region as well. So without the support from the Austrian Government, the IOI would have found it very difficult to coordinate the international activities that it has. Pre-Covid, the IOI was hosting about two or three trainings per year for ombudsman institutions. AORC as the secretariat of AOMA is also playing a similar role for African ombudsman institutions.
Adv Mpofu: Yes. And that then takes me to something that, let's start with a OR Tambo Declaration. At paragraph 14 of your affidavit you then refer to something called the OR Tambo Declaration on the minimum standards for an effective ombudsman institution. What is that?
Ms Zulu-Sokoni: You will recall I think, when I commenced my evidence that from 2005, when the African Ombudsman Association transformed to the African Ombudsman and Mediators Association, it was resolved that we needed to standardise the principles, ethics of ombudsman institutions in Africa. It was very difficult, even from a personal perspective, it was very difficult for me to explain to my government that I could not be accountable to the executive and investigate the executive. And we needed to move away from being an executive ombudsman to a parliamentary ombudsman. So we wanted to have standards, continental standards, which would assist ombudsman offices when they were having problems with their governments. To be able to say, these are the standards for the African continent and this is what we need to do to improve the performance of the ombudsman institution in our country. I'm very happy to say that I was part and parcel of the team that was actually drafting the OR Tambo minimum standards for effective ombudsman institution. And they were launched in 2014 and by 2016, it helped me as well to lobby my own government when we were establishing the parliamentary ombudsman system. And by 2016, Zambia had transformed from an executive ombudsman institution to a parliamentary ombudsman system. And I hope that it has also helped a lot of other African countries, ensuring that they have a properly constituted ombudsman office in their jurisdictions.
Adv Mpofu: Okay, thank you very much. And maybe, again, just for the sake of progress, if you allow me so that we don’t have to come back to that topic. To just jump to that declaration, which is obviously important for the continent and South Africa. Given its origin and even its name. Can we go to page 266? Yes, now that's the OR Tambo Declaration on the minimum standards that you just explained to us, correct?
Ms Zulu-Sokoni: Yes, correct.
Adv Mpofu: And if you can, just to confirm what you're saying, let's go to right at the end. I will come back to 266. Let's go to 271, please. The signatures. Yes. So just go further down a little bit. And this document was adopted at OR Tambo International Airport, 26 February 2014. And it's signed by I suppose the then President of AOMA.
Ms Zulu-Sokoni: Yes, Dr Paulo Tjipilica.
Adv Mpofu: Okay, and who's from where?
Ms Zulu-Sokoni: He was the ‘Provedor de Justiça’ from Angola.
Adv Mpofu: From Angola?
Ms Zulu-Sokoni: Yes
Adv Mpofu: And then it was signed by the Public Protector of South Africa, the then Adv Thuli Madonsela. Who I'm sure will tell us more about it. She's going to be one of our witnesses. Was that also to recognise the role that you say South Africa plays in this entire project?
Ms Zulu-Sokoni: At the time, the Public Protector South Africa was both Chairperson of the AORC as well as Executive Secretary. At the time the position of Secretary General was called Executive Secretary of the African Ombudsman and Mediators Association. So she signed in her capacity as Executive Secretary of AOMA.
Adv Mpofu: Good. Alright, now let's go back to 266. Thank you. And against this, before I ask you specifically, when I was asking you earlier about the importance of these international institutions, the word that you used the most was the word 'protection'. And why is it, is that an important issue, the issue of protection of incumbents or ombudsman offices?
Ms Zulu-Sokoni: As I explained earlier, the institution of the ombudsman is very unique in that it's is a creature of political will. The government of the day has to allow for the institution to be created. Of course, public awareness, also increasingly public awareness, and a call just a general call from the people for an institution which supports the ordinary man has also helped. The wind of change of democracy has also helped to instate this institution in various countries. But once the institution is created, there are a lot of underlying problems in order for the ombudsman to be able to operate independently. So you can, if you look at all the instruments that I have quoted, not just the OR Tambo: the Venice Principles, the IOI by-laws, the United Nations resolutions, they all talk about the need to protect the independence of the ombudsman because the ombudsman investigates the very office which created it, and the very office which funds it, and the very office which is supposed to pay all the salaries of the members of staff and the ombudsman himself. So you find, I think I can speak from experience, you find that the institution of the ombudsman will not be properly funded. It will probably be the least funded and yet the institution is supposed to investigate the executive, whether it's parastatals, whether it's ministries, ministers, permanent secretaries (PSs). This ombudsman is supposed to investigate all these people. So the first thing you'll find that there is underfunding The second issue, maybe you'll find that, which happened in my case, the ombudsman reports to the executive. And if the government does not accord the ombudsman the appropriate status, you will find that the ombudsman is on the civil service salary scale, and the head of this civil service is his boss. And when the officers from the ombudsman go to investigate the various officials, they are even threatened and told, how can you investigate your boss? And you find that a lot of the members of staff in some instances are drawn from the civil service. So the members of staff start to fear that 'I will not be promoted, I'll be demoted' because they are within the structure of the civil service. So it became necessary to set up standards to say, even the staff of the ombudsman must be appointed by the ombudsman and must be not drawn from the civil service. Other threats to the institution include political reprisals to the ombudsman himself. So the conditions of service of the ombudsman may be tampered with, you may find that the ombudsman is not able to, even if he has the powers to access documents and other things, he may not be able to access documents, even if it's in the law, but it may not be possible. So you'll find that in a lot of jurisdictions, they say the ombudsman is a toothless dog because the ombudsman is supposed to be the public service watchdog. But the executive, which establishes it, is the one that is supposed to give it teeth. And by its very nature, and this is the reason in the classical example, the ombudsman reports to the legislature in order to separate the ombudsman having a conflict of interest, being accountable to the very office it was established to investigate.
Adv Mpofu: Yes, thank you very much. Well, if you can just pause on that. And I'll just ask you to maybe, insofar as you may comment on this. Because that issue that you have raised is, features very prominently in this enquiry that we're having here, in various ways, but let me just give you one example. As I said, we are a democracy maybe we can learn a thing or two. Maybe we can make the necessary adjustments, learning also and everyone has accepted here that this process is also for us to learn as a country. Now, in our situation, against the background that you have mapped, we have a strange situation where a member of the executive, for example, is given the power in terms of section 194(3)(a) to suspend the Public Protector basically in his/her discretion. Even in a situation where the Public Protector is investigating that person. Is that a good thing that is in line with the protections that you are talking about at a general level? An unfettered power to suspend at the hand of the executive? And I will give you an a comparative situation with judges, where that situation is quite different. But as far as the Public Protector is concerned, there isn’t.
Adv Nazreen Bawa: Chair?
Chairperson: Just a pause, Adv Mpofu. Just a pause. Adv Bawa?
Adv Bawa: I'm sorry I interrupted you. Finish your sentence, Adv Mpofu.
Chairperson: No, I’ve now recognised you.
Adv Bawa: Sorry. I thought that maybe in not wanting to get into an argument or debate with my colleague that it should be appropriately stated to the witness that it's not just a member of the executive, but it's the President.
Adv Mpofu: Yes. Well, even worse, yes. That's even worse, the President, the most powerful member of the executive. Thank you. Has the power to suspend the ombudsman. And in our situation, in an act that one of our courts has labelled as retaliatory. Because what had happened is that the Public Protector had issued certain questions to the President and then she was suspended the following day. But that's the background. But the question I was putting to you is more general, without getting into the specifics of that case. I'm saying, in terms of the, what you call the standards, the accepted standards, and the need for protection which you have emphasised. Would you say that situation, where a member of the executive, and the most important member or most powerful member of the executive has got that power without even – and I think it's in one of the countries, we will come to that – without even having to get the confirmation of parliament, for example, is that a good thing?
Ms Zulu-Sokoni: I will state that according to ombudsman standards, we talk about applying the principles of natural justice. And we insist on procedural fairness in our work. And this insistence on applying the principles of natural justice and procedural fairness does not just extend to the ombudsman when the ombudsman is investigating. It extends to the relationships of the ombudsman and his members of staff. Whatever he does, he must be guided by the principles of natural justice. Those are our tools, our working tools, and by the concept of procedural fairness at all times. And even in our administrative interactions with, whether it is the executive, whether with it is with the judiciary, or whether it is with the legislature, that is the standard that we use. If that is the standard that we use, then I expect that the different arms of government will recognise that and they will also insist on adhering to the same high standards of procedural fairness. But of course, it's a work in progress. In all jurisdictions, it's a work in progress.
Adv Mpofu: Yes, thank you. Alright, maybe let me put it this way. Again, if we try to keep it at the general level. Let's assume you have three countries. Let's call it country A, country B and country C. In country A, before the Public Protector can be suspended, there is the system where you have to get confirmation from parliament. And as I say, it's one of the countries, I'll give you that example. Okay, so that's Country A. In Country B, even the suspension itself is done by an independent body of judges or whatever independent body. And then country C, the president can just suspend you without those two protections. Which, according to the things you are telling us, which of those is the worst system?
Ms Zulu-Sokoni: Of course the third one is the worst system, but I must state that because we are talking about the institution of the ombudsman, it is absolutely necessary when any of the arms of government is dealing with any issue regarding the ombudsman that procedural fairness must apply. Because the ombudsman is in a very vulnerable position, as I said before. The ombudsman investigates the executive. So, it's absolutely necessary to afford the ombudsman the highest levels of procedural fairness available. It's one person operating in an office as a legal entity, and the responsibility of making final decisions for all the investigations in the institution lies upon the shoulder of that officer. It's not easy. It's very stressful, speaking from experience, so the ombudsman must be accorded the highest level of, how can I put it, administrative and legal support to ensure that there is procedural fairness when any issue to deal with the institution is under the purview of any of the arms of government. So, you said in the first instance, there is a suspension which is subjected to a process, another process So, I would suppose that, first that process must be completed before any decision can be made to accord any sort of decision with regard to that office holder. And in the second instance, where the board is completely independent, I assume that all the proper procedures are in place. And the office holder would not have an any complaint, really, with the process. And then when this country C, where the president just suspends arbitrarily, obviously there isn't a proper ombudsman system in place. We can't even really categorise it as there being an ombudsman in that country, if there is such a situation. I will say that we have had applications, like at the IOI, from countries where the ombudsman is appointed and dismissed by the executive. And normally, according to our criteria, we don't accept membership of such countries.
Adv Mpofu: Okay, thank you. You've taken me to my next question. Again we're talking about some country somewhere in the air. If it was to be found in that country, that's something like what you and I have described, which doesn't really accord with the how the institution of ombudsman should be run. Am I understanding you to say that, that country might face the possibility of being expelled? Maybe that's a strong word, but at least not being accepted into the family of ombudsman institutions in the world? Let's use your country. If in Zambia tomorrow they come up with measures which clearly are not in accordance with the minimum standard. Would that risk expulsion from IOI and that kind of thing?
Ms Zulu-Sokoni: Such decisions are not taken very liberally. There's usually a lot of to-ing and fro-ing.
Adv Mpofu: Assuming the to-ing and fro-ing is done, then what would be the worst thing that could happen?
Ms Zulu-Sokoni: The worst that can happen is expulsion.
Adv Mpofu: Okay. Thank you. Now you talked about reprisals… and we're still on the subject of protection… that there must be these instruments. If you summarise them, all call for maximum protection of ombudsman incumbents and offices, for the reasons that you've explained because the office is inherently vulnerable as it investigates very, very powerful people.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And institutions. This is what I want to get at and I'm just cutting to the chase so that I can be sure that my country is not going to be expelled. We have the following situation here and if we go to… No, let me start by saying this, which is more important. Is it correct that in your explanation of the separation of powers earlier, you said that parliament, and again we're talking in general terms, should actually be protecting the Public Protector?
Ms Zulu-Sokoni: Let me start by saying that, of course, there are different systems the world over. But if we're talking about the classical model, the ombudsman is accountable to parliament, is appointed by parliament, and can be dismissed from office by parliament in the classical model. Yes. Now. I think it was not envisaged that a situation would arise where an ombudsman really needs to be disciplined unless they really grossly mis-conducted themselves. Because the way the classical model is designed, the ombudsman has the unfettered powers of a judge during the course of investigations. So in order for you to be able to get the information, to get the evidence, you have to use those powers until the point when you're issuing the report. Then those powers drop from you. You issue a report where you only make recommendations. And the reason that is so was to prevent the ombudsman from always being in continuous litigation, if they were made to have binding powers. Also the second reason is just to ensure that there can be no acts of retribution from the executive, no harassment, because then the recommendations are just so, they are recommendations. If the executive wants, they can ignore those recommendations. And then the ombudsman now has the added protection of going to parliament to say, I issued this report and the respondent is not willing to implement the recommendations. And then it will then have to be up to parliament to send this matter to a committee, which would then engage the respondent institution to ensure compliance. So in a classical model it was never envisaged that the reports of the ombudsman would have to go as far as to the courts really. Yes.
Adv Mpofu: Alright. Maybe let me ask it differently. Of the three arms of government, who should protect the Public Protector?
Ms Zulu-Sokoni: The reason why we say the office of the ombudsman should be accountable to parliament, is because through the system of checks and balances of the separation of powers, you want to ensure that the ombudsman reports to a body which it does not investigate. That is the protection that is accorded to the ombudsman.
Adv Mpofu: So, which of the three should protect the Public Protector?
Ms Zulu-Sokoni: The legislature.
Adv Mpofu: Thank you. And if you put it crudely, the legislature should protect the Public Protector from who? Maybe let me ask it differently. Which of the three arms is most likely to pose a threat to the Public Protector?
Ms Zulu-Sokoni: Because the ombudsman investigates the executive, so the executive is the branch that is more most likely to erect these barriers to the work of the ombudsman to ensure that the ombudsman does not work effectively. But I must state here again that the judiciary also offers a protection in that it gives the office of the ombudsman the powers to make all the orders which are equivalent to a high court during the course of investigations. So these two protections work very well, and at the end of the day the report doesn't lie hidden in somebody's desk. It has to go to the legislature to ensure that it gets compliance from the executive.
Adv Mpofu: Yes. Thank you. So, if we then summarise it. You think the executive is most likely to pose a threat, correct?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And the primary protection should come from the legislature?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: But also the judiciary should play a part in the protection?
Ms Zulu-Sokoni: Because it gives the powers to the ombudsman.
Adv Mpofu: Yes. Now what happens in a situation in our favourite country somewhere in some continent. What happens in a situation where now the legislature is supposed to be the protector of the Public Protector, and the judiciary that's also supposed to be the protector. Or let me put it this way, the legislature actually takes judgments from the judiciary and says these are binding, we're just going to plonk them. Sorry, that's probably Afrikaans. We're just going to transplant them, and you're gone. In other words, the two arms that are supposed to protect you then wittingly or unwittingly collaborate – the one just borrows from the other some ready-made product and is the conduit pipe and then you must be removed. Is that country complying with what should be happening?
Ms Zulu-Sokoni: The legislature in this case in the way that the classical ombudsman operates is supposed to only come in to scrutinise the ombudsman in an instance, as I said, where there is gross misconduct, but in the constitutional performance of the office of the ombudsman. I think the aspects of upholding the constitution comes in, in my view, because the office of the ombudsman is accountable to parliament and lays its reports before parliament. And it is at that point that they can comment and say to the ombudsman, we do not agree with this report, because they can refuse to implement the report. They can refuse to implement the report. But for when. I assume like even in my jurisdiction, I'll give an example of my jurisdiction. When a matter comes before my office, and I issue a report, it is a binding. I do not issue recommendations, it's a binding report. When it goes to the court of law, because now it's binding, I don't even need the legislature to enforce that matter. So when the respondent appeals, if I make a finding against respondent, the respondent can go to a court of law. And when it goes to the court of law, if it goes against me I don't think that because that is the normal process. You are trying to exhaust the administrative channels of appeal. The respondent is trying to exhaust their administrative channels of appeal. And I don't see the reason why that judgment should go back to the legislature. The respondent is allowed, it is his right to exhaust the channels of appeal. To go through the court process and go through the channels of appeal.
Adv Mpofu: Yes, let me ask you more directly. Is a country that allows a system where a product from the one arm of the state, the judiciary, is simply transplanted into parliament and used to remove an ombudsman, a good system?
Ms Zulu-Sokoni: I will say that the checks and balances then are not working properly. Because if a matter goes to court and a judgment is made, what is the reason to reinforce it again? I don't know. Maybe I don't understand the question. But as far as I can see, the normal checks and balances of the three arms of government should not cross over. Unless I don't know; I'm not privy to maybe the legislation.
Adv Mpofu: Okay, alright. Let's maybe stop talking about some country somewhere else. Okay. Here, in this enquiry, and I might be wrong about the numbers – 90% of the charges are directly based on court judgments, which were brought here. And we were told on the first day when we got here, that those court judgments are binding. And so, I don't even know why we're here, because if they're binding then I suppose we should have just wielded the axe on day one. But that's a separate issue. I'm saying that, is it a good thing that a public protector or an ombudsman can be removed on the basis of 90% of the material or more, that might even be under estimating, that comes directly from the judiciary into an enquiry, and then it's just a tick box. Okay. The judge said, you did this wrongly, therefore you did it wrong. The judge said, you did not give this one a hearing, therefore you didn't give them hearing. The judge said, you were biased, therefore you're biased. Off you go. Chop the head. Is that what was envisaged in the instruments that you've described?
Ms Zulu-Sokoni: The ombudsman by the very nature of their work. The fact that they investigate the executive. When a matter goes to court and the matter goes against the ombudsman. I think the system is cleansing itself well, because the reports of the ombudsman are being put up to scrutiny by the courts of law. And the courts of law are able to say no, here ombudsman you were wrong. And it is also a way of ensuring excellence in the work of the ombudsman. So there is no reason why when now the courts do their job; they've done their job. They've said, ombudsman here you were wrong or ombudsman here, you were right. They've done their job. The system has cleansed itself. I don't know. I don't see the reason it should be taken up by another arm of government again. I don't know. That is my professional view. There is no need for – the system has cleansed itself. And if that ombudsman is an ombudsman who is aware of the principles and ethics of their job, they will take note of what the courts are saying and implement it in their work to ensure that it doesn't happen again.
Adv Mpofu: Yes, good.
Chairperson: Maybe, Adv Mpofu if you could pause? Unless you want to ask one question?
Adv Mpofu: One question just to wrap up that point so that we don't forget it. Yes. Okay. Maybe let me go back to my old system. You have two countries. In one country, what you've just described happens. The judges make their judgment, and as you correctly say, it should be a learning tool for any public protector once a judgment says this, and so on. And assume it has gone all the way up to the highest court, so it can’t be changed. So, it's now becomes a learning document. That's what happens in one country, and it ends there.
In the other country it doesn't end there. That judgment is taken and used by the legislature to now do more than what the courts have done, to actually remove the person. Which of those two systems is better? The one where it's used as a learning, it goes it's full course and it's a learning process and, as you say, hopefully it doesn't happen again? Or the one where it's taken as a weapon of mass destruction?
Ms Zulu-Sokoni: I think I'll just state that this is the reason the international ombudsman world has insisted on ombuds standards. If we are to follow, to apply the standards when we are setting up. From the time we are setting up ombudsman institutions, if we say okay, it's a pity that, for example, all the standards have come way after ombudsman institutions have been established, but still, there is a way of correcting our constitutions. There is a way of correcting our legislation. If we adhere to the standards, then such a situation should not arise.
Adv Mpofu: Thank you. Thank you, Chair.
Chairperson: Thank you, Adv Mpofu and Adv Sokoni. We'll pause for 15 minutes break.
Chairperson: We resume. Ms Sokoni, are you settled? Are you comfortable? Thank you. Welcome back colleagues. Over to your, Adv Mpofu.
Adv Mpofu: Thank you, Chair. Good morning again. Okay, I’m just greeting you to see if I can get you closer to the mic or speak more loudly. Alright, we were dealing with this thing. And in my view, a very important part of this context that we are trying to paint here. Now I'm going back to this issue of the judgments versus the removal enquiry.
Adv Bawa: Sorry, Adv Mpofu. Can you tell me where in your statement we are at the moment?
Adv Mpofu: Where it deals with the separation of powers. Okay, well, this issue of separation of powers is everywhere. You talk about. Sorry, let me just. Okay, for example, paragraph seven. Remember, we're still talking about your favourite word, which is the protection. Okay, I'll just read it. It's long, but since I've been asked to, I’ll do it. You say there at paragraph seven of the statement. It starts at 216. Its paragraph seven. That’s 219. Its long. It says, concerning an ombudsman's mandate. The Venice Principles include, and we'll go to the Venice Principles in more detail. I was just dealing with the protection thing. Include the prevention and correction of maladministration, and the protection and promotion of human rights and fundamental freedom. The Venice Principles stress that the protection and promotion of human rights and fundamental freedoms should also be extended to the ombudsman and deputies and their staff. Okay. So, let's pause there. Am I correct that there the word 'protection', which is used twice, is used in two different contexts? One is the protection of the public. That's why it's called the public protector. That you're saying that the principles talk about the protection of the public protector, herself or himself, correct?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Which is what we're busy with here. So that's the first issue. They stress on the aspect of immunity of the ombudsman and the staff from court action, with regard to the implementation of the core function of the institution, that's the judiciary. The thing that you and I have been discussing.
Ms Zulu-Sokoni: Yes, that’s correct.
Adv Mpofu: All right. And then it says, the Venice Principles refer to this as functional immunity. This is a big one we will be discussing later, functional immunity. So, you can park that. States are further urged to refrain from taking any action aiming at or resulting in the suppression of the ombudsman institution. That's what I was leading you on now. States, including South Africa, as a matter of practice included the immunity from court action of the ombudsman and their staff. Then you say, the rationale for including this clause is meant to discourage governments from using more than one branch of government from exercising administrative or disciplinary control over the ombudsman. Disciplinary control would include an enquiry such as the one we're having here, correct?
Ms Zulu-Sokoni: Correct.
Adv Mpofu: It says here, the ombudsman rights and authority derive from the three arms of government in order to carry out its functions, your evidence about separation of powers. However, all three arms of government cannot exercise administrative authority over the office of the ombudsman. It is because the executive is so powerful, the point you made earlier, that checks and balances of the separation of powers become necessary. The very nature of its work demands that executive be reined in by the judiciary. Through the judicial review of administrative power, and by the legislature, which carries a watching brief of executive, should probably be over executive actions and decisions by subjecting the actions and decisions to review through parliamentary debates and approval or disapproval in the implementation of pertinent government policies tabled in the form of Bills before the House. However, the ombudsman is normally established as a corporate sole, a single person set up a legal entity with no powers which can be equated to the executive. And here's the punch line. The office of the ombudsman was not intended to be the object of disciplinary or administrative censure by all three branches of governments at the same time. This weakens the independence of the office. Is that what we're discussing now, the issue of if s/he is, in a way, the object of disciplinary censure by all three arms? We've spoken about the powers of the executive to suspend. I'm now busy with what I call the collaboration, for lack of a better word, between the judiciary and the legislature for a process such as this one, are we together?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Thank you. That's the answer to my learned colleague. Okay, let's come back then to the subject. Maybe, thanks to her we should then use this paragraph as the basis of how we take this further. I'm saying then, if you have a situation where the executive in this context are the bad guys – are likely to be the ones who attempted to threaten the Public Protector with reprisals. I think we've established that. I'm now looking at the other two arms. I'm saying, if we have a situation where the two arms are in a way, just passing the same judgment that came from one of the arms called the judiciary, is now being used by the legislature. So in a way you have all three arms as it were, ganging up for lack of a better word, against just this one institution. Who then must protect the Public Protector?
Ms Zulu-Sokoni: The office of the ombudsman, as I stated, is established as a corporate sole and the office is accountable to parliament. So any issues which arise in the office should be tabled before parliament. Any sort of, whether it's administrative, whether it's a legal matter which they're facing, the Public Protector or the ombudsman should feel free to go to the legislature and seek counsel for that particular matter or seek protection for that particular matter. Now, with respect to the judiciary, the judiciary also offers protection to the ombudsman in that when their reports are tabled before the judiciary. The judiciary gives that extra scrutiny that independent scrutiny, also on the reports of the ombudsman. So these protections can operate and should operate independently of each other. However, when one arm of government takes a decision, perhaps that is not advantageous to the ombudsman? I don't know. I have not seen this happen before. I don't know. I don't know how it crosses over. So, one is an administrative disciplinary procedure, then, but it's emanating from a finding of the judiciary. I think it is not supposed to be so because when the judiciary makes a finding over a report, that is the normal procedure, like I said, that is a normal cleansing system. The system is cleansing itself out. And the Public Protector, like I said, I repeat again, the Public Protector or the ombudsman, learns a thing or two, and changes the procedures, the processes within the office to adhere to the judgment. And I think that is what happened, for example, in the Zambian situation,. It was a matter which went against us, where the respondent took us to court, and we changed our processes and procedures accordingly, because the constitutional court also gave a ruling in that matter. And we accordingly applied their guidance. So, I don't know. I would not expect that that matter would cross over again to the legislature.
Adv Mpofu: Well, it happens here in South Africa. Let me just be clear that when I say maybe, so that your evidence has not been misunderstood. I'm talking about, shall we call it, institutional and structural independence and protection mechanisms. When I say, the legislature and the judiciary, I don't mean like one day, in some dark room, you have the Chief Justice and the President and the Speaker of Parliament saying, oh, let's go and get the Public Protector. I'm talking about institutionally entrenched independence and the dangers of the absence thereof. So that's why I was asking you whether a system that allows for a product of one of the arms, being the judiciary, to simply be used by the other is a good one or a bad one, but that's fine. Let's take it further because I think you have given the answer. Now, what I'm coming at is this, really, let's just cut to the chase. Here, again, I won’t give to my so-called exemplary country. In this country, here, in this room actually. When the issue of, for example, the unlawful suspension of the Public Protector is raised or was raised to the people that you say should be protecting her. The answer is that that has nothing to do with us. That's the stance of the South African parliament. That the issue of the suspension, lawful or unlawful, retaliatory or not, inspired by 31 questions or not it has got nothing to do with us. Pontius Pilate approach. So the South African parliament has washed its hands, in biblical terms, from such a thing, from such an intervention by the executive. Is that how the system is supposed to work?
Ms Zulu-Sokoni: You have said in your previous question that, I think 90% of the charges are emanating from court judgments.
Adv Mpofu: Yes.
Ms Zulu-Sokoni: So, if that is the case, the precedent has already been set. And if there is another court judgment that comes out that favours the office of the ombudsman, taking into account procedural fairness, then that judgment must also be taken into account by the body that is looking into the matter. I think it's just fair. It's only fair that if some judgments have been tabled before a body that is here hearing a matter, and those are adverse to the person, and then some other judgments that are in the favour of that person come out. And those are not accorded the same and equal attention, by that body that is hearing the matter, then there's been some unfairness and this involves the issue of a person's rights.
Adv Mpofu: Yes. Thank you. So, then your answer to my question, which is whether it is correct, fair, in accordance with the principles that we have enunciated here, for a parliament of a country to say the matter of the fairness or unfairness or legality or illegality of a suspension of the Public Protector has got nothing to do with us. Is that consistent with those principles?
Ms Zulu-Sokoni: No, they do not seem to be consistent. As I have said, if they are taking into account consideration of certain judgments which have come out, which are disadvantageous to the person who is appearing before them, and then they take those into account. Then there are other judgments which come out, which are advantageous to that person and they say that they cannot take those into account as well. Then the issue now of fairness comes in because the rights of that person have not been respected.
Adv Mpofu: Yes. Okay. That's the probably the worst case scenario. Let's even be kinder. Let's assume this is another country. There's no situation where they've taken into account the judgments that are not favourable and what have you. We just starting from scratch, and you come to that country. You say, parliament, my protectors, please. I have been illegally suspended. And the parliament of that country says, this has nothing to do with us. Forget the comparisons and so on. Is that on its own a good thing? It's like going to a police station and you say someone has just stabbed me and the police say, well, that's got nothing to do with us. The body that's supposed to protect you. If it says an illegality that has happened to you has got nothing to do with them, is that in accordance with the principles?
Ms Zulu-Sokoni: I think before a person has been suspended they must be made aware of the charges that are against them, and they must be given a fair hearing. So this is a body of ultimate justice, you know, and fair play and as a legislature. They should be able to assist an officer who is accountable to them to say, well what are the charges before you? Has fair play been taken into account in this particular instance? And they should accord the appropriate protections, if they are available. They should accord those protections.
Adv Mpofu: Let's then go to page 414 please.
Adv Bawa: Where do you want to go, Adv Mpofu?
Adv Mpofu: 414. I thought that they were all under item H? Are we not on item H today? So, I'm just giving you the page numbers, like I've done before.
Adv Bawa: Adv Mpofu, there’s different items that has been put into bundle H and they're not marked 414 so we have difficulty.
Adv Mpofu: But the page numbers are continuous? We have found it. Thank you very much. Let's go to paragraph 157. I'll read out. This is what our court said in this situation that this parliament says it has got nothing to do with them. It says, in our view, this is a full court, the hurried nature of the suspension of the applicant in the circumstances, notwithstanding that the judgment of the full court was looming on the same subject matter, leads this court to an ineluctable conclusion that the suspension may have been retaliatory. That's the reprisal you're talking about. And hence unlawful. It was certainly tainted by bias, of a disqualifying kind, and perhaps improper motive. In our view, the President could not bring an unbiased mind to bear as he was conflicted when he suspended the applicant. I'm saying that situation. If it happens in any country, can the legislature of that country say, we hear this, but it has nothing to do with us? Is that a good thing? Or rather, maybe let's not use good or bad. Is that, would that situation, the behaviour of that parliament, be consistent with the principles that you have enunciated from the UN, IOI, AOMA, OR Tambo principles and what have you, all the protections you have spoken about? Would an attitude of a legislature that says this about its ombudsman, when a court has said this, be consistent with those principles?
Ms Zulu-Sokoni: It would not be consistent with those principles, because this is a person's rights that we're talking about. And the person is a citizen of that country and entitled to enjoy the rights that can be availed to them by the body that is carrying out the investigation. So, no.
Adv Mpofu: Thank you very much. All right. Well, let's not even go to that parliament of that country refusing or saying that that person who’s accused of all those things there is not a relevant witness to be called. I think the answer to that follows from your previous answer. But that's a debate for another day. All right. Now, let's go back. I’m just wanting to check that my country is not going to be expelled. Alright, so far we've found big areas where the first one was the ability of a member of the executive who's being investigated, in our case on six different investigations, to suspend the person investigating them for without having to check with parliament or anything like that. And the second one, was this issue of parliament that says, we're not going to get involved in whatever abuse has been found by the court. Alright. Now, if you go to the OR Tambo Declaration and I'll take you just quickly to the minimum standards on page 268. The two words that seem to permeate all these instruments are captured at 1.1. The 'independence' and 'autonomy' of these institutions must be guaranteed by the Constitution. Agree?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Okay. Now, independence, I think you've spoken a lot about. We'll come back to in a different context. I want to now talk about autonomy. Just again, to see if the South African situation conforms with the international instruments. By the way, South Africa is a signatory or a member of the United Nations General Assembly instruments which we will come to. And so is your country, correct?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Alright. As we have seen, it's a signatory to this document and it even houses the AORC, correct?
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: Now, what is this autonomy that appears in all these documents, whether it's the Venice Principles, the Paris Principles, the OR Tambo, the UN General Assembly. Why is this important? And I said we'll come back to the issue of functional autonomy. Firstly, what is that? And why is it important?
Ms Zulu-Sokoni: The Venice Principles refer to functional autonomy of the ombudsman, meaning that the ombudsman must not be brought up for charges concerning his constitutional, legislative or administrative functions. The reason this is recognised as a need to extend the protection to the ombudsman for the administrative functions of the ombudsman. If, for example, the members of staff are employed by the executive directly, it is likely that they can be compromised. For example, some of the standards go as far as saying the ombudsman must not be housed in a government building with other government institutions because it means that if there are complainants coming from those government departments, they'll be apprehensive to come and lodge a complaint. So, when we talk about administrative autonomy, we talk about the staffing, the administrative support to the institution. As much as possible, this should be independent from the executive. Then when we talk about the legislative autonomy, we're talking about the setup within the constitution and the enabling statute which has provisions which talk about the independence of the institution, that the officer shall not be accountable and not answerable to any other office. Also that in the investigations that are carried out by that particular office, there shall not be any interference by any arm of government, from any person. This is what the Venice Principles refer to as the functional autonomy. And they even go further to say that the office holder must have immunity from any form of civil or criminal litigation regarding the administration of the mandate of that office. And this is, like I said, this is a recurring theme in all the instruments with regard to the office of the ombudsman.
Adv Mpofu: Thank you so much. Alright, we'll go to the Venice Principles themselves. For now, I'm just testing against – they say charity begins at home – so I'm just testing it against the OR Tambo principles. Alright, so let's go now to our favourite country. Which by now it must be clear is South Africa.
Chairperson: Was that the country in the air?
Adv Mpofu: Yes, it has come back. Now in terms of functional autonomy, again, I'll describe your situation. True story. And you'll tell me if it is consistent with functional autonomy. We have an impeachment process and enquiry, parliamentary enquiry at that. It is the high level, highest accountability mechanism. In that enquiry, you have 18 witnesses that are called. 15 of those are employees, including disgruntled employees who had this and that gripe and were given this letter or that letter and what have you. Or were disciplined for sexual harassment and everything like that. Is it consistent with functional autonomy and immunity that parliament should busy itself with those kinds of internal workings? This one came late to work and this one was disciplined, maybe they should not have been disciplined and what have you. Is that the consistent with the sacrosanct principle of functional autonomy? Let's exaggerate. Let's say there were 15 witnesses and all of them were about that.
Ms Zulu-Sokoni: I would say it is not consistent with the principle of functional autonomy because the institution of the ombudsman, by its very nature, as I said before, is a creature of the executive. And most, I don't know how the system is here in South Africa. Like for my staff, in my office, all of them are civil servants. So, if they were all to testify against me it would really be flying against all the principles in the book regarding the functional autonomy of the ombudsman. And that is why I think all the principles, all the international instruments insist that the members of staff of the ombudsman should be employed directly by the ombudsman.
Adv Mpofu: In line with what you and I will know as the principle of reciprocity in matters of that kind. In layman's language, the Public Protector should therefore have the right to hire and fire autonomously.
Ms Zulu-Sokoni: Yes. According to the standards, the ombudsman should have that right, in order to prevent these issues of conflict of interest arising even from among the members of staff.
Adv Mpofu: Then would a parliament, a reasonable parliament, if there's such a thing, busy itself then with there was an interview and then number three, you should have been number two, and this one was hired instead of that one, or vice versa? There was a disciplinary process and this one got an audi letter, this one didn't get it, that kind of thing, which has to do with hiring and firing. If a parliament busied itself mainly… 90% of its business was around those issues. Would that be consistent with functional independence and autonomy and immunity?
Ms Zulu-Sokoni: Well, speaking from, like I said, from my own jurisdiction. First of all, all of them are civil servants. So I would take that any tribunal that is calling them up would first try to establish the relative independence of these particular witnesses. And then secondly, I would say that each of these people, if they have a grudge against the office of the ombudsman, they have the right to go to a court of law or tribunal to bring their case and complain. I don't see the reason it would have to go through the one institution which the office of the ombudsman is accountable to. Seems a bit, I don't know, odd.
Adv Mpofu: That's an understatement. But we can understand you should be diplomatic as our visitor. I think when we do the wrapping up we'll find other adjectives than odd. But be that as it may. You were fortunate or unfortunate to be here for the evidence of Mr Samuel, for example. That's the kind of thing I'm talking about. I'm saying, if you had people who it turns out, sometimes by their own admission because they were honest enough, that they had a gripe. And as you say, let's assume the gripe is legitimate, for some reason or another. Let's say maybe their disciplinary process was rushed or whatever. But they have a gripe at the human resources level, such as Mr Samuel, whose evidence you listened to. The point I'm making is for that to be entertained, and as you've said, it could be entertained in the labour court or whatever, we have such a thing in this country. But for those people who have those gripes, is parliament the platform to entertain those kinds of things – a disciplinary or removal process of an independent function? Not saying they should be suppressed. I think you’ve said they've got other avenues. But should they be expressed in the context of a removal process vis-à-vis functional autonomy?
Ms Zulu-Sokoni: See, these matters of hiring and firing and disciplining, they are going on almost every day in almost all institutions. I think parliament’s time would actually be overwhelmed with such matters. If indeed all the institutions that are accountable to parliament, if they were to go through a similar process they would actually. That's my view anyway. I think to put it simply, it would really be an overwhelming process for it. If that is the way that we have to go, because in each and every institution, there are issues of staff turnover. If I can put it that way. So if we really were to go into each and every institution, you would find there are people who have issues with their supervising officer or head of institution. That is the reason I'm saying that if a matter regarding the Public Protector has to come before a body or a tribunal, it should be a matter where there is really gross misconduct on the part of the ombudsman. Not just the day to day running of the office and the day to day disciplining of officers. I recall, for me, in my office, there was a time when there was a non-implementation of decisions by the CEO. This person was coming from government. I did explain to the government that there is non-implementation of the decisions of both the Head of Finance, the Secretary of the Treasury, and the Secretary to the Cabinet, and myself by this officer, and I surrendered that officer back to government. I don't know if that would… Obviously, I'm just trying to give an example that these things happen. They happen all the time.
Adv Mpofu: No, that's a good example, as I say again, you are diplomatic. When you say you surrendered the person back to government you mean that you fired them? You got rid of them from your office.
Adv Mpofu: Alright, thanks. Alright. No, no, fair enough. And you are not impeached?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Alright. Now, again, let me just zero in. You know, I say that we are a young democracy, and maybe, hopefully, we'll learn something from this process. We've been talking about the duty to protect and you use that word repeatedly this morning. So let me take it closer to home. The drafters of our Constitution were wise enough to think that a day like this might come and the elevated status of the legislature in particular as now one of the organs, not just the organs of government, but also as an organ of state. The obligations actually, to protect the Public Protector were codified as follows. In section 181(3) and (4). But let me start with 181(3). Then I’ll ask you to comment on the examples that I'm giving. I’m reading from 181(2) of the Constitution of our country. These institutions are independent, and subject only to the Constitution and the law, and they must, underline 'must' here, be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. I’m starting there, okay. We've dealt with the issue of fear. The fear, we know where it mainly would come from, okay. Now go to 181(3). Other organs of state, in other words, other fellow organs of state in general, but I'm talking now specifically about parliament, which has an elevated status. Through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions. So read it now specifically to our context. The parliament, and other organs of state, through legislation and other means must assist and protect the Public Protector to ensure her independence, impartiality, dignity and effectiveness. Okay. And then the last one, 181(4), which captures probably the sentiment you've just spoken about, about functional autonomy even better. No person or organ of state may interfere with the functioning of these institutions. Would you agree that that sentiment captures what you and I have been calling functional autonomy?
Ms Zulu-Sokoni: Yes, I would agree. I would actually even further state that as democratic states, and also having a system where we will lay precedents. We must always examine the processes and procedures that we implement regarding the protection of human rights, because the precedents that we are setting in the hands of, let's say, a nation that does not adhere to proper democratic principles. They can misuse these sorts of precedents to intimidate and harass and victimise an ombudsman, because they will say, well, it has been done before. So we can do it again. They can replicate it. So we have to be very, very careful when we are dealing with the implementation of human rights issues. We really, really have to be so careful.
Adv Mpofu: Yes, I agree. But specifically talking about the institution of ombudsman. I'm saying that our discussion so far with the examples that I've given you. Let's start with the duty to protect. I think we dealt with that in the morning. And you've given, I've given you examples, which you have agreed are inconsistent with the protection of the independence of the institutions. But now, we're talking specifically about functional autonomy.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And I'm saying to you, that I mean, the word is there. Okay. Maybe let me do it like this. Why do you think our founding mothers and fathers of our Constitution found it necessary to include 181(4) which you and I have agreed deals with functional autonomy? No person or organ of state may interfere with the functioning of these institutions. And you've said that includes the HR hiring and firing issues? Why? What's the importance of that in the context of the ombudsman principles that you have described?
Ms Zulu-Sokoni: I think let me put it like this. The functions of the office of the ombudsman depend so much on its independence. There is no way that the office of the ombudsman can function without administrative and legislative autonomy. That is a core principle. It can't.
Adv Mpofu: And if it is undermined, if there is a process that undermines that, is that in accordance with or in conflict with the accepted principles of this office, including 1.1 of the OR Tambo Declaration?
Ms Zulu-Sokoni: Yes, it obviously breaches all the international instruments, because they all talk about this functional autonomy. And it doesn't make the next incumbent of the office feel any safer, I think, to have a process like this going on.
Adv Mpofu: In other words, if a Public Protector or a judge, and I'll come to that, was to be impeached in breach of the principle of functional autonomy, the next one will know that you can't fire anyone; can't give anyone deadlines; can't do performance management, because one day these people might go to parliament and you’ll be impeached. Is that what you're saying?
Ms Zulu-Sokoni: Yes, you make the ombudsman literally a slave of the system, because they'll be so frightened of their own shadow.
Adv Mpofu: Yes. Well, it's more than looking over your shoulder or chasing your shadow. I think it's a clear warning that you must refrain from doing so. Isn't it that when we do disciplinary measures, we're teaching a lesson even to those who might follow?
Ms Zulu-Sokoni: This is the reason why I talked about the issue of precedent. But maybe I must state that these things are real. This is the reason why these issues have been put in these documents. I also went through a similar process in my early years when I was appointed as ombudsman, when every single process that was going on in the office was under the telescope of law enforcement institutions. So it really disturbed the functioning of the office and as I said, it strengthened my resolve to have the office be transformed to a legislative ombudsman. This was being done by the executive at the time. Yes.
Adv Mpofu: Thank you. And one has to assume, and I'm sure you know this, I'll ask it as a leading question. When your country Zambia migrated from the executive ombud system to the current parliamentary system in 2016. These were some of the issues that were being thrown away into the dustbin of history to move forward?
Ms Zulu-Sokoni: Yes. We're still going through the process of implementing the administrative autonomy.
Adv Mpofu: Now in that context, therefore, a country that then goes to that dustbin and fetches the system where administrative and functional autonomy is subjected to parliamentary scrutiny. Is that a movement forward or a movement backward?
Ms Zulu-Sokoni: For the functional autonomy especially I think it's a movement backwards.
Adv Mpofu: And by the way, let me just say this. Okay, so sorry, I don't want to lose this point. But just to link up something to do with your credentials, which is relevant to this. We all accept that one of the most well known protections for this kind of office is something called security of tenure. Correct?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And you've spoken about immunity, we'll come back to that. But the security of tenure, I'm asking you out of interest, because in one of the instruments it says that the term of office should be basically, well firstly, it must be longer than the term of office of the parliamentarians and it must be possibly as long and secure as possible. I think in your country you say, next year, you will be in the office for 20 years.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And in Zambia you can hold the office until you are 60?
Ms Zulu-Sokoni: Yes, until the age of 60.
Adv Mpofu: So if you employed at the age of 20, you can hold it for 40 years?
Ms Zulu-Sokoni: Yes, yes.
Adv Mpofu: Now that's part of the protective mechanisms from interference by all sorts of people who are conflicted, correct?
Ms Zulu-Sokoni: Yes, but it's not the prescribed model. The prescribed model is that the tenure of the ombudsman should be for a prescribed time, maybe two terms of five years or like here in South Africa, one term of seven years. And this is to ensure that the term of office is certain and it should not be interfered with. It's usually prescribed by the constitution. And one of the reasons why there is security of tenure for the office is to prevent the unlawful or wanton removal of an office holder from office before they have finished term of office.
Adv Mpofu: Yes. Thank you. Okay. The point I was really driving at is that the general trend is to lengthen the period.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And we in South Africa are probably at the barest minimum, because according to the Venice Principles, the minimum period should be seven years. But obviously, the word minimum means it should preferably be more but not less than seven years.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Chair, I'm just digressing to get rid of this. I'm still going to go back to what I was busy with. But since we're here, can we go to page 318. Is that a copy of the so-called Venice Principles?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And why are they called Venice Principles?
Ms Zulu-Sokoni: They are called the Venice Principles, because they were drafted by the Venice Commission of the European Commission.
Adv Mpofu: And it would be fair to say that these principles have now gained recognition worldwide via the instrument of the United Nations?
Ms Zulu-Sokoni: Yes. Actually, the background to the evolution of the Venice Principles is that initially the Paris Principles were adopted by the United Nations as an instrument to help establish national human rights institutions throughout the world, and to also protect these institutions. So the office of the ombudsman was also included as a national human rights institution. But later on, it was thought that really, the office of the ombudsman is not like national human rights institutions because human rights institutions receive complaints of human rights from any member of the public against any person or anybody that has infringed their rights. But for the office of the ombudsman, the office of the ombudsman is unique because it investigates the executive. So it was thought that it needs its own unique set of principles to protect the work of the ombudsman, and hence the Venice Principles. But they were sent out to various regional bodies, ombudsman bodies throughout the world to get input from everyone internationally.
Adv Mpofu: Yes. Okay. Thank you. Chairperson, if you'll forgive me, I just wanted to isolate one thing from the Venice Principles, but I'd rather deal with them. Obviously, that introduction I won't repeat. But if I can just move back so that we don't lose the... There's just one point I wanted to wrap up on the other topic we were busy with. The security of tenure thing was just an example. I don't want to follow that now. So, thank you for telling us where the Venice Principles came from. But I want to go back to this issue of independence and autonomy. The importance thereof in South Africa, which is I think people just don't get. You have, in your earlier testimony said that in some countries, including this country I think, the Public Protector…one of the qualifications in the legislation is that they must in terms of salary and status and qualifications and so on, be regarded at the same level as a judge.
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: And that is also not a coincidence. You could use all sorts of examples such as chief of police. The fact that a judge is used as the reference point is not a coincidence. It's because these are both independent institutions, correct?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And in your case, you were – even the Chair called it a promotion, but that's debatable whether it's a promotion or demotion – but you were recently asked to serve as a judge.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Right. Can we allay the Chair's fears that you have decided to accept that position or not?
Ms Zulu-Sokoni: There were discussions back home and it was pointed out that the office of ombudsman has got security of tenure. And it was much better actually to allow the office holder to complete the term of office before being considered for any other office. So happily the government acceded to that submission. Therefore, I'm still the ombudsman of Zambia.
Adv Mpofu: So escaped from the, quote unquote, promotion for now. The point I really want to get to is a more serious one about what I say in South Africa, unfortunately, there's a dire failure to appreciate this issue about the independence of the Office of the Public Protector in particular vis-à-vis the independence of the judiciary.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Our Constitution is not confused about this. It's just human beings. It's actually uncanny. If you look at Section 165 of our Constitution. I read this thing for so many, since it was produced, but this just one of these days occurred to me. It shows you that you learn every day. If you look at section 165(3) of our Constitution and 165 (4). For the sake of emphasis, Chair, if you allow me, I'm just going to read this out. You will see that this is almost a carbon copy of what I read to you earlier, of section 182, literally. It's just that this time the other one comes first and so on. So the first one is about functional autonomy, this is now in relation to the judiciary. No person or organ of state may interfere with the functioning of the courts.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Remember we said earlier 181(4). No person or organ of state may interfere with the functioning of these institutions. Literally word for word.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: So the Constitutional founders found it necessary to use the exact same words for the protection of the Public Protector in this case and a judge.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Okay. Then the next one, 165(4) again, literally a carbon copy. And I don't think this was a result of laziness of drafting. I think it was deliberate. It was sending a message to us which we have not internalised. It says organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. Do you see 182(3) is exactly the same except where it says the courts, it says here, these institutions.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Now if the founders of the Constitution, thought that these two institutions should be protected in almost an identical way then why is it that there should be a difference when it comes to the actual protections? And I'm coming to something you said earlier. Remember my example about the two countries and what have you?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: As far as the judiciary is concerned, you said that if the legislature has to get involved, it must be involved at the end of the process.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And rather if the suspension we spoke, we were talking about the suspension by the President should come at the end of that process?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Now here in South Africa, this is what we are told. When it is a judge, this is common cause you can take it from me, because I used to be involved in it. When it is a judge, you have an enquiry much like this one. Okay. And only until the person has been found guilty at the enquiry may the President suspend. That's a good thing. But here it is believed that in this case, the President may suspend before the finding of guilty, as it has happened to the person sitting next to my right. Now, if we have this principle of, as I say, almost carbon copy protection by the Constitution. Which of the two systems is fairer? The one that's the protection given to the judge by being only subjected to suspension after. Or the one where you may be suspended before any finding of guilty against?
Ms Zulu-Sokoni: The proper position, as stated in the OR Tambo Declaration, and the recommendations in most of the international instruments, is that at minimum the office of the ombudsman must be equated to that of a judge. Now what do they mean when they say it must be equated to that of a judge? It means that the terms and conditions of service of that office as well as the powers of that office must be equated to that of a judge. And this is not being implemented, because there is this contrast between civil law jurisdictions and common law jurisdictions. I would wish that common law jurisdictions would take that on as well because it would just be these two principles. The principle that the reports of the ombudsman must only have an effect of recommendations. And then the ombudsman's terms and conditions of service and powers must be equated to those of a judge. Be it a judge of a high court. That is the best case scenario, because first of all, the report of the Public Protector will not be appealable to courts of law. One, because it's their recommendations. Two, because the Public Protector is equated to a judge. Yes.
Adv Mpofu: Thank you. All right, I can see you are eager to come to the real issue. I'm saving that for after lunch. Which is whether the best system as we all thought in South Africa, including myself, I must confess… is that which makes the outcomes, I’m trying to look for a neutral word, of the Public Protector binding. And conventional wisdom says that that's the better system… or a system where it's just recommendations. As I say, we'll come back to this, because that's really the main thesis of your paper. But just to get it out of the way, from your analysis is this thing that we believe and maybe we did it because at a particular time we were after a certain individual… Which one of the two systems – where the Public Protector’s outcomes are binding or they are recommendations – is more consistent with the notion of the independence and autonomy and safety of the Public Protector?
Ms Zulu-Sokoni: The concept of the ombudsman is based on the principle that because recommendations are not just to prevent the office of the ombudsman being subjected to unnecessary litigation, and being subjected to unnecessary victimisation, the reports of the ombudsman must have the effect of recommendations. That is the classical model. That is how it has been. It is the tried and tested model. That is how it has been from time immemorial. However, I fully understand that, of course, a lot of governments want to have the force of an enforcement mechanism given to the office of the ombudsman. But we already have law enforcement agencies in our countries. When an ombudsman carries out an investigation, they can make recommendations that this particular matter must be transferred to the anti-corruption commission, it must be transferred to the people in charge of money laundering, must be transferred to this wing of government. So there are systems in place to ensure that the ombudsman report is taken seriously.
Adv Mpofu: So, which of the two systems. Yes, I know its lunch, sorry, Chair. We have a system A, where it's binding and a system B where there are recommendations. Which system? Okay, let me put it this way. Later on, I'll even say that we would not be here if we had not had a system of binding remedial action. But that's a story for another day. But in your analysis, as somebody who has experience in this field, who's an expert, who understands all the different models, and you've given us all the comparatives. Just directly: is the system where the outcomes are recommendations, the better system qualitatively taking into account all those things, or the one where there are binding outcomes or remedial action?
Ms Zulu-Sokoni: From my own experience, the classical model, where the effect of the ombudsman's report is a mere recommendations is the better model. It's the stronger model. It entrenches independence for the ombudsman.
Adv Mpofu: Thank you. Chair, that was an introduction to the topic that I was saying I'm saving for after lunch, but it came out so I thought I might as well lay the basis. Thank you, Chair.
Chairperson: Thank you, Adv Mpofu. Thank you, Ms Sokoni. Colleagues, we will pause there for lunch and be back at two. Thank you.
Chairperson: Thank you. Welcome back. I hope you had a good lunch break. Thank you very much. We resume. I immediately hand over to Adv Mpofu to continue. Over to you, Adv Mpofu.
Adv Mpofu: Thank you Chair. Good afternoon, Hon Sokoni. More specifically to the Venice Principles and just as a reminder, we've already established that these principles have been received and adopted directly or indirectly at continental and international level, and even by the UN. Correct?
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: Those principles are quite clear in their intention by the heading, its page 318, Chair. Yes, we've gone through the reason they're called Venice Principles and all that. But I just wanted to say that from the heading, it's quite clear what they are all about. It says, principles on the protection and promotion of the ombudsman institutions, otherwise known as the Venice Principles. Let's go to 319. These were adopted in 2019. As at that point, it says the first one is noting that there are presently ombudsman institutions in more than 140 states national, regional or local level with different competencies. We established that. That's the constituency of Hon Kajuju. And it says recognising that these institutions have adapted into the legal and political system of the respective states. We've covered that. And then noting that the core principles of the ombudsman institution including, and this is where I'm coming to, independence, which we discussed before lunch, objectivity, transparency, fairness, and impartiality may be achieved through a variety of different models. I suppose by that we are to understand that those are the core principles, but it doesn't mean every country under the sun must have the same system as long as they respect the core principles.
Ms Zulu-Sokoni: Correct.
Adv Mpofu: Just go to the last one. Expressing serious concern with the fact that the ombudsman institution is at times under different forms of attacks and threats, such as physical or mental coercion, legal action, threatening immunity, suppression, reprisal, budgetary cuts and limitation of its mandate. Some of those issues we have not covered such as the physical and mental coercion although it applies here. We'll deal with it when the Public Protector is testifying. But I'm more interested in what they call suppression reprisal. What does that refer to?
Ms Zulu-Sokoni: When they refer to suppression reprisal, they're referring to acts of reprisals against the office of the ombudsman. Therefore, resulting in suppressing most of the powers of the Public Protector and even the principles on which the office of the ombudsman is based.
Adv Mpofu: Right. Also very quickly something that we have covered, please go to page 320 at the bottom. Again if you want to comment, you can comment, but I think we've covered some of this. It says the ombudsman institution shall be given an appropriately higher rank, also reflected in the remuneration of the ombudsman and then the retirement compensation. Why is that important?
Ms Zulu-Sokoni: Of course, what they're talking about is ensuring that the ombudsman is untouchable, cannot be corrupted. The conditions of service must be sufficiently high, especially if equated to that of a judge. This is the reason we protect our judiciary. The terms and conditions of service are sufficiently high in order to discourage any official of the judiciary from being enticed to receive any sort of bribe or anything.
Adv Mpofu: And incidentally, why we're talking about the judiciary, bearing in mind the discussion we had this morning, which I won't revisit, about let's call it parity of treatment. Is it in accordance with that principle or law? No, let me ask it differently. Have you ever had a situation where a judge, let's say, gives a completely outrageous judgment, and gets scathing remarks from the appellate court about it, which happens all the time, and then the judge is called to parliament for impeachment just because they had a bad judgment? Would that be consistent with the system of protecting the independence of the judiciary?
Ms Zulu-Sokoni: Normally, in such a situation, the defendant, whether it's the plaintiff, would be in a position to appeal the judgment. I think there hasn't been any situation where the judge has to answer to an authority because his decision has been appealed against.
Adv Mpofu: Paragraph 10, about the minimum term of seven years, I'll just read it out. I don't need you to come in; you can just confirm. So, the term of office shall be no longer than the mandate of the appointing body. The term of office shall preferably be limited to a single term with no option for re-election. At any rate, the ombudsman mandate shall be renewable only once. A single term shall preferably not be stipulated below seven years. So they're saying preferably non-renewable, but if it's renewable it must only be once. A minimum of seven years, we've already confirmed that.
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: Okay. And what I really want from you are the underlying principles. So it's not like somebody just woke up and said, well, these people must serve only for seven years or they must be non-renewable. It is to serve a particular purpose. What is that apropos independence of the institution? Why is it important? What would happen if these people could have renewable terms, six or seven renewable terms? How could that be a threat to their independence?
Ms Zulu-Sokoni: The proviso which states that the term of office should be non-renewable is to prevent any arm of government trying to negotiate with the ombudsman that, no, if you take an investigation in this particular way, then we'll give you another term of office. So there should be no reason for the ombudsman's term of office to be disturbed. And there should be no reason for the ombudsman to be enticed or to get attracted to compromising his position simply because he wants his term to be renewed.
Adv Mpofu: Thank you. Because isn't it human nature? If my term was renewable, then, let's say it’s a seven-year term, on the sixth year, am I likely to make findings against the people who are going to be considering whether I should stay or go?
Ms Zulu-Sokoni: Yes, exactly. That is a reason I said that. To avoid the ombudsman being compromised. This is just human nature, you know.
Adv Mpofu: And doesn't it also apply to our previous example? If I know that this person has the power to suspend me willy-nilly, and if I'm a calculating Public Protector, then I will avoid even investigating them, let alone ask them 31 questions.
Ms Zulu-Sokoni: The office of the ombudsman should be above reproach. It should be beyond the reach of any person. This is the reason the provisions and the protections you see in these international instruments have been couched in such a way that the office is really cemented and entrenched under all the protective principles.
Adv Mpofu: Principle 11 – again I'll ask for a comment just to the underlying rationale as you understand it – says the ombudsman shall be removed from office only according to an exhaustive list of clear and reasonable conditions established by law. These shall relate solely to the essential criteria of incapacity, inability to perform the functions of office, misbehaviour or misconduct, which shall be narrowly interpreted. And I want to emphasise that last part. In other words, misconduct could be anything from, you know, stealing an apple or coming to work late or whatever. So what is the purpose and it says that it must be 'solely', it's quite restrictive. Solely relates to this and that and the other, and those must be narrowly interpreted. What would be wrong with interpreting them widely as in the normal course?
Ms Zulu-Sokoni: Interpreting any of these provisions, incapacity, inability to perform the functions of office or misbehaviour. Interpreting them too broadly means that you're actually encouraging people who are either shopping for the job or shopping to have an incumbent removed from office for personal reasons. It's just to discourage petty reasons being used to remove an incumbent from office.
Adv Mpofu: And would that also apply to people who are campaigning for the removal of the Public Protector, sometimes even before she's starts? Who just don't like her for some reason or another. If those terms are not narrowly interpreted, wouldn’t it open her to that kind of abuse by, for example, an individual or a political party that has a vendetta?
Ms Zulu-Sokoni: Yes, definitely. And it has happened before to many an ombudsman. I think myself included. So these things are real.
Adv Mpofu: Hence the need for the protections.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: By the way and let me finish that sentence. The parliamentary majority required for removal by parliament itself or by a court on request of parliament shall be equal to and preferably higher than the one required for election. I think if we escaped being expelled, it will be because of that one. At least there we qualify because the requirement for selection is 60%. But it's 67.6 or let's say 67% for removal. So that's a good thing. Right?
Ms Zulu-Sokoni: Yes. It's in line with the provisions of the Venice Principles.
Adv Mpofu: You may or may not know this, in our South African sense, we were assisted by, helped by the Constitutional Court. The original Constitution prescribed Assembly majority. And the Constitutional Court, in a case known as the Certification Case, said no, for the Public Protector in particular and the Auditor General, there should be a two thirds majority, for obvious reasons, protection.
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: And then here is a big one. The procedure for removal shall be public, transparent, provided for by law. And elsewhere it also says it must be fair. That should go without saying, correct?
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: And what should happen if the procedure is found to be unfair in one way or another? I'll make an example, quote unquote, example. Let's say in the process the Public Protector is denied legal representation. The process, the procedure just continues without any legal representation. From the face of it, would that be fair?
Ms Zulu-Sokoni: No, it would not be fair.
Adv Mpofu: Again let's make another example. Let's say that one of the people who are supposed to judge the Public Protector or to remove her is married to the complainant. Would that be fair?
Ms Zulu-Sokoni: I beg your pardon?
Adv Mpofu: Let's say one of the people, let's say there's a panel of five or 10 people or 20 or 30, but one of them is married to the complainant. Would that be fair?
Ms Zulu-Sokoni: That would be completely unfair. It's a conflict of interest which should be addressed.
Adv Mpofu: Thank you. By the way, yours represents an interesting example, because this issue of political interference, as you say is real. But it looks like some countries are able to handle it better than others. On that scale, I would say our country on a scale of zero to 10, is on zero. But your country seems like it's maybe on nine. How many presidents have you gone through as a Public Protector and you're still sitting there?
Ms Zulu-Sokoni: Five presidents.
Adv Mpofu: Okay, and how many political parties do they represent? Were they all from the same political party?
Ms Zulu-Sokoni: No, that's three political parties. Three different political parties.
Adv Mpofu: Okay. Well, I think I'm going to move to Zambia. One can't even handle the factions within the same political party. But anyway, in those years, I'm sure you've had challenges, but nobody dared, because there were changes of government or changes of political parties, to think that they should bring you to something like this, let's say for some HR issues, correct?
Ms Zulu-Sokoni: Correct. There has been no proceedings against me.
Adv Mpofu: That's why your country is as an older democracy than ours.
Ms Zulu-Sokoni: I must state that the institution of the ombudsman in Zambia was established in the 1973 Constitution. So, the office was opened in 1974. So it's quite an old office. I think there has been time for them to actively learn more about ombudsmanship.
Adv Mpofu: Well, I suppose you can take your horse to water. So we will learn if we're willing to learn. Okay, the last one on 321. The competence of the ombudsman relating to the judiciary shall be confined to ensuring procedural efficiency and administrative functioning of that system. Okay, this is another typical checks and balances mechanism, isn't it? And it's misunderstood by the way in our, even in other situations, people think that the Public Protector is prohibited from investigating the judiciary but that's actually not true. The Constitution only says in 182(3), the Public Protector may not investigate court decisions, which is a different thing from saying you may not investigate the judiciary. In other words, if I'm an aggrieved litigant who has lost a case or whatever, is about to be evicted or whatever, I can’t take that decision to the Public Protector and say this judge made the mistake. But what is the situation when it comes to administrative decisions of let's say the Chief Justice's Office or that kind of thing?
Ms Zulu-Sokoni: Normally, if I take the example of Zambia, the constitutional functions of the courts are restricted to the judges. And then of course, the administrative functions. There is a usually a chief executive officer. So, the judiciary may be investigated in its administrative functions but not in its constitutional functions. But I will vary that a little bit to say that was the position in our previous constitution. But in the current constitution, when we have become a parliamentary ombudsman, there are specific provisions stating that the ombudsman shall not investigate either the judiciary or the legislature. So we investigate exclusively the executive, but in a lot of jurisdictions in Europe, where they have the classic ombudsman system, the ombudspersons do investigate the judiciary in its administrative functions. Some even review the decisions, but yes, I don't know how they do that.
Adv Mpofu: Thank you. At least I’m happy now. At least in that respect, we are better than Zambia. And, in fact, an example in this country had to do with this matter, where there was some gentleman who we heard on, quote, good authority, that there was going to be a judgment against the Public Protector. In this matter. And then the Public Protector was able to do an investigation. In the end it was overruled by the same judiciary. But at the very least, nobody said that she could not investigate the administrative side of the judiciary. In other words, whether the judgment was leaked deliberately or not. So that's a good one. That's a tick for us, correct?
Ms Zulu-Sokoni: Yes, definitely.
Adv Mpofu: Now I forgot 322. Point 16. The ombudsman shall have discretionary power on his or her own initiative or as a result of a complaint to investigate cases in which due regard to available administrative remedies. Ombudsman shall be entitled to request the cooperation of any individuals or organisation who may be able to assist his or her investigation. Ombudsman shall have a legally enforceable right to unrestricted access to all relevant documents, databases, and materials, including those which might otherwise be legally privileged or confidential. This includes the right to unhindered access to buildings, institutions and persons including those deprived of their liberty. Okay, in this country, I think we’re 50% there, because the first part, initiative investigations are allowed only in terms of section 6 of our Act. But there's a case which found that the Public Protector could not subpoena documents from SARS, for example. And it's a case that you and I will discuss later or tomorrow morning. Are you familiar with the case of Public Protector v Commissioner for SARS.
Ms Zulu-Sokoni: I think I have had occasion to read it.
Adv Mpofu: Thank you. Yes, we'll deal with it in a different context. But if you care to comment on just this aspect of what you think of that case insofar as it seems to suggest that the Public Protector should not have access to SARS documents?
Ms Zulu-Sokoni: The provision in the Venice Principles and in almost any other instrument that covers the issue of the ombudsman's rights to have access to documents does not give actually any exceptions. So I was a little bit surprised that there was a need for the matter to go as far as it did in this particular matter, but I also noted that the court on appeal – it was the Constitutional Court – stated that there could have been other ways in which the Public Protector could have accessed the particular record that she wanted to access. But I merely noted that the person, the owner of those records was actually not I think a party to the proceedings, was not a public official. So there are certain rules when we are carrying out investigations. We don't go to private entities to get information or to private persons. It's actually supposed to be the state entity that is supposed to give us the information that we need. And in the interest of justice, it should actually not be difficult for the ombudsman to access those documents from a state entity. It should not be made difficult.
Adv Mpofu: No, thank you. Okay. I did that case so my view is probably subjective. I'm glad to hear that you agree with what we said there. Yes, no, that's true. The Public Protector wanted access to documents of the former President in that case. Alright. Then the next point deal in our domestic situation, what I call the 31 questions that the Public Protector asked of the President. The Venice Principles say the ombudsman shall have the power to interview or demand written explanations of officials and authorities and shall furthermore give particular attention to and protection to whistleblowers within the public sector. Is that correct?
Ms Zulu-Sokoni: Correct.
Adv Mpofu: Next one, the ombudsman shall have the power to address individual recommendations to anybody or institutions with the competency of the institution. Ombudsman shall have a legally enforceable right to demand that officials and authorities respond within a reasonable time set by the ombudsman. And in our example, I think she had given the President 30 days but well, almost nine months now but we’re still waiting. But why do the Principles insist or at least prescribe that the ombudsman should give a reasonable period? Let's say maybe 30 days was too harsh, three months, six months, but obviously not like a year or nine months.
Ms Zulu-Sokoni: Basically, we use the instrument, the tool that is available to us. The audi alteram rule that we should give all parties enough time to prepare their case before the ombudsman. So, it's up to the ombudsman. Sometimes it will be a statutory requirement that you give a certain party 30 days. But it's up to the ombudsman's discretion to even exceed the time limit which has been set by statutes. But the most important point is that there should be procedural fairness. You should allow each party enough time to put together their evidence before they present it to the Public Protector.
Adv Mpofu: Good. Thank you. The next one relates to a very important topic for the particular charges that the Public Protector faces here. Maybe I should preface it by this. You'd agree as a lawyer that the Constitution, I think there's a court case, I've forgotten the name. The Constitution is just a piece of legislation. It's Act 108 of 1996, I think. So it's like any other Act, except of course, it's the Constitution. It's a superior type of legislation, but it's legislation, correct?
Ms Zulu-Sokoni: Yes, it is legislation. The supreme law of the land.
Adv Mpofu: Yes. In fact, yeah, it's even better to put it like that. Yeah, it's law. And it's just happens to be the supreme law. Just as legislation is law. The common law is law.
Ms Zulu-Sokoni: Exactly.
Adv Mpofu: I'm just saying that because maybe for you and I as lawyers that might seem so basic, but sometimes it's not that simple. Now one of the charges here relates to something about the Public Protector having proposed a constitutional amendment. This annoyed, shall say, big capital. In this case, it was a particular bank, and all hell broke loose. How could she even think of suggesting a constitutional amendment. Is that such sacrilege, if the Public Protector felt that there was something that is detrimental to the public, which is in the Constitution advertently or inadvertently? Is there anything wrong with suggesting that that should be attended to by Parliament, obviously, using its own procedures?
Ms Zulu-Sokoni: The Public Protector may make a recommendation. If either a rule or regulation or a law in some way causes maladministration. The Public Protector may make a recommendation. It is a recommendation which the legislature, once the report is tabled, the legislature can decide either to interact with the executive to find doubt whether it's possible or not. Or if they want, they can reject the report. The legislature has the right to reject the report of the Public Protector. But that’s in a situation where it's a recommendation. I don't know.
Adv Mpofu: Don’t worry about any other situation. What I'm about to read to you, I was saying I'm prefacing it. I'm simply saying that if the Public Protector recommends that Parliament looks into a particular constitutional amendment, okay. Maybe let me put it this way, because that says what is being alleged here. That the Public Protector is prescribing to Parliament, which is, for me, it's just nonsensical. Would it stop, let's assume she did that, would Parliament then have to make that amendment? Or will it have to follow its own procedures? And if it doesn't meet the numbers, it doesn't matter. That's the point I'm trying to get at.
Ms Zulu-Sokoni: Yes, Parliament would have to follow its own procedures only if it accepts that report. Once the report is tabled.
Adv Mpofu: In other words, if Parliament doesn't challenge? Parliament might also challenge it, correct?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Fair enough. Okay, now let's go to Venice Principle 18. Its 322. It says, in the framework of the monitoring of the implementation at the national level, ratified international instruments relating to human rights and fundamental freedoms of the harmonisation of national legislation with the instruments of the ombudsman, or rather instruments. The ombudsman shall have the power to present in public, recommendations to parliament or the executive, including to amend legislation or to adopt new legislation. And I'm including the Constitution as the super legislation, but under that rubric, would then be anything wrong for the Public Protector presenting recommendations for the amendment of legislation or the Constitution or the adoption of new legislation? Or let me put it this way, why does the Venice Principles, in your estimation, specifically deal with that power and isolate it as a power which the Public Protector should have?
Ms Zulu-Sokoni: Because when the lawmakers have the intention to prescribe a law, it is only in its practical implementation, whether that law causes justice or injustice. It may look good on paper. But once it is in the hands of the people who implement the law, that is the executive, then it will come up under the scrutiny of the Public Protector. And then they may have to make certain recommendations to say in its practical implementation, this law is not as good or bad, just or unjust and we feel that it should be reviewed.
Adv Mpofu: Good. Right. Okay, well we don't like that in this country. I must tell them in Venice. Okay. Then the next one also deals with that same subject. But now from an attacking point of view. In other words when there's already some unconstitutionality. It says, following an investigation, the ombudsman shall preferably have the power to challenge the constitutionality of laws and regulations, or general administrative acts. I suppose this is the flip side of Principle 18 where that's the friendly part where the Public Protector would recommend an amendment of the Constitution. Here, it's when she now wants to challenge an existing statute or whatever. So that's the importance the same as what you've already described?
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: Let's jump to 21. At the bottom. I'll just read out, the independent financial audit of the ombudsman budget shall take into account only the legality of financial proceedings and not the choice of priorities in the execution of the mandate. Now this is important in relation to the functional autonomy discussion we had earlier. Why do you think Venice says that the scrutinisation of the financial audit of the PP should not go into the choice of priorities. For example, whether you put money in this or don't? That's the stuff we're talking about, the operational decisions. There's something here called reckless litigation, but we'll come to that later, as to whether she allocates the budget to this or that and the other. Should the budget be scrutinised by parliament to that extent, in the context, not of the normal accounting of parliament, but in the context of a removal in particular?
Ms Zulu-Sokoni: Insofar as ombudsmanship is concerned, everyone comes equal before the ombudsman. So, the reason an ombudsman may pursue a particular complaint and cannot pursue another complaint, is the discretion of the ombudsman. So long as the reasoning and the rationale is contained in the report. So, yeah, there is no need really, to question the reason a particular complaint was followed, that this complaint was not followed, so long as the complaint falls within the mandate of the Public Protector. Most of our clients are vulnerable people, people who have no money. So you may find that actually, you may be spending a lot more to investigate these complaints of the vulnerable. People which are maybe far away in the nether regions of the country. So this is a reason that particular provision is phrased in the way that it is.
Adv Mpofu: Yes, I think it's fair to say that all the instruments that we have referred to – UN, IOI, AOMA, Venice – all of them without fail emphasise this issue of the, let's call it, budgetary independence on the one hand, and budgetary sufficiency. In other words, one of the ways in which an office of the ombudsman could be victimised is by squeezing it of resources, isn't it?
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: Now in regard to Principle 21, and I'm bringing it home here. Is it fair for an institution such as parliament, to which the Public Protector has appealed endlessly to have this budgetary self sufficiency and for good or bad reasons those budgetary requirements have not been met. And then, therefore, she then implements measures like performance management, and all sorts of things to ensure that within the limited means that she can still deliver. And then that same institution turns around and say, now we're going to remove you for your way of managing the limited resources. Isn’t that an internal contradiction?
Ms Zulu-Sokoni: That is an attack actually on the functional independence of the institution of the ombudsman.
Adv Mpofu: Thank you. Okay, then let's go to 22 which, in my view, still deals with something you've already spoken about. About hiring and firing. It says the ombudsman institution shall have sufficient staff and appropriate structural flexibility. Institution may include one or more deputies appointed by the ombudsman. The ombudsman shall be able to recruit his or her staff. That's the hiring. And we agreed that the corollary of that is the firing. How does that measure up to this issue of functional autonomy? The power to recruit and fire.
Ms Zulu-Sokoni: This in particular speaks to the administrative independence of the office of the ombudsman. It's very, very important that the staff of the ombudsman and the ombudsman himself are not compromised in any way simply because they owe allegiance to a particular organ of government.
Adv Mpofu: Thank you. Then the next one deals with functional immunity, 23. Almost there, Chair. It says the ombudsman, the deputies, and the decision making staff shall be immune from legal process in respect of activities and words, spoken or written, carried out in their official capacity for the institution, functional immunity. Such functional immunity shall also apply after the ombudsman and deputies of the decision making staff leave the institution. So you can see how seriously this is taken. That even after the person has left, they should still enjoy that immunity. But in relation to what we were saying. People come here and say no, the Public Protector said this, we must call her Madam and all sorts of things like that. But this document says that she should be immune from legal process in respect of activities and words, spoken or written, carried out in their official capacity for the institution. Now I want to make this clear, when we say these things, it doesn't mean that there must be impunity. But what is the purpose of that immunity? What is it in aid of, to protect the Public Protector from this kind of interference from the functioning of her office, in terms of section 181(4) of our Constitution, which I read out to you earlier? What, as I said, I asked you these things for the underlying principles? Why are they immunised functionally?
Ms Zulu-Sokoni: The main reason is to ensure independence of the office of the ombudsman from the institution which it investigates, which is the executive. So the members of staff of the ombudsman office may be followed up, even after they have left work, to come and maybe testify against an ombudsman who is still in office. So to avoid such conflicts of interest happening. This is a reason there's such a focus in the Venice Principles to ensure the independence and to protect the integrity of the office.
Adv Mpofu: In other words, let's say somebody did whatever, all these horrible things that were explained here, that Public Protector would be immunised even after leaving office?
Ms Zulu-Sokoni: Even after leaving office.
Adv Mpofu: Let alone while they're serving the office.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Then this is what I call if you're a religious person. Go and read in Matthew 27, about Pontius Pilate. It says, the state shall refrain from taking any action aiming at or resulting in the suppression of the ombudsman institution or in any hurdles to its effective functioning, and shall effectively protect it from any such threats. That's the issue of reprisals, the illegal suspension by the President, and so on. Now if states have a duty to ensure that this does not happen. I know I've asked you this question before, is there room then for a parliament to say, well, as far as those threats are, it's got nothing to do with us?
Ms Zulu-Sokoni: The particular provision speaks to states, in the abstract, and I think when they say states they mean all the three arms of government. So it speaks to the government as a whole that they should refrain from occasioning any administrative or legal threats against the office of the ombudsman.
Adv Mpofu: Thank you. And by the way, to carry on with my biblical allusion. Pontius Pilate knew that, participated in the crucifixion of Jesus Christ, knowing that he was innocent, but he was scared of losing his job or being in disfavour with Caesar. That has nothing to do with anyone in this room. But I'm just saying that, is it that kind of behaviour of saying, look, I probably know that you're innocent, and I'm washing my hands of the blood, but still carrying out the function against the threats, obvious threats. And threats, I mean here objectively it might not be a real threat, but it might be a reasonable perception of a threat, because the person is being investigated or whatever. Can a protector – and I know I'm asking this for the third time – can a body entrusted with the protection of the Public Protector absolve itself from the responsibility to protect her from those threats? You’ll see just now why I'm asking these questions.
Ms Zulu-Sokoni: The institution of the ombudsman was created to investigate the executive and to be accountable to parliament. And the reason that was so, was to ensure that through the principle of the separation of powers, the office of the ombudsman can seek from parliament refuge and shelter against the excesses of the executive.
Adv Mpofu: Thank you. That's the best answer so far. But that takes us, madam, to page 344. And this is now Hon Kajuju’s territory. And if I'm sufficiently provoked I’ll call her a witness to defend her document. Can you go to 344? But you have also operated at that level. You're the treasurer?
Ms Zulu-Sokoni: Yes, I am the treasurer.
Adv Mpofu: So she can delegate that task to you. Now here, and this is quite important for the this question that I've asked you many times. The IOI has seen it fit to produce a document called the IOI guidelines. Madam Sokoni, this is the document which was approved by the board of directors in Bangkok, November 2016. Now this one deals specifically with the threats that we've been talking about in theory of reprisals, unfair suspensions and that kind of thing. It says, the purpose of these guidelines is to establish principles and courses of action to coordinate IOI support for ombudsman coming under threat, facing reprisals, or operating under difficult circumstances. The joke there is that this document was obviously written by an English-speaking person, because they've put ombudsmen in plural, as if it was English, but it's actually a Swedish term. But anyway, it says at IOI we are aware that those threats are arising also in the middle of growing challenges and threats to human rights in many countries. In other words, the threats against public protectors become part of the general lawlessness or abuse of human rights in a particular country, correct? Now this document, I found it particularly depressing. Let's go to the definition at 345. Because I hope Madam Kajuju is not listening. I think if she uses this document, we are gone. The definition says, threats to ombudsman institutions come in a variety of forms, but have a common denominator. They come as a direct response to the complaint-handling work of the ombudsman and their efforts to protect human rights and fight corruption. Okay. So again, fighting corruption is usually against the powerful forces, public and private, in any society, correct?
Ms Zulu-Sokoni: Correct.
Adv Mpofu: And then it says, for the purposes of this guidelines threats should be defined as any action that is directed towards an ombudsman institution or an incumbent, directly or indirectly, that potentially puts the independent operation and exercise of the ombudsman's duties at risk. All the examples we've said before, unlawful suspension, direct threats, even physical threats to physical life, correct?
Ms Zulu-Sokoni: Yes. If you could refer to annex one, maybe, I don't know what page it is. They are listed under annex one.
Adv Mpofu: Yes, we are going there. That's the part that is depressing me. Can I just say, I think broadly we've covered this in the morning, and Hon Kajuju would assist us there. And then the worst case scenario is if someone doesn't, if someone practices this, or a country encourages this or turns a blind eye to such threats, it could potentially face expulsion. I know it's not as easy as that but it's one of the consequences, correct?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Thank you. And now one of the things that the IOI, at 347, may do if a country does anything that looks like is in breach of this protocol, would be. I think, yes, bullet 1234. To establish a commission of enquiry to take evidence in the country concerned if necessary, and report to the executive committee. Obviously, we know where that might lead us.
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: Sending an IOI delegation to study the problem in the field. Well, they are already here.
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: Now here's the depressing part. At page 349, there's a list of what you call possible threats to ombudsman institutions. Okay. And they're listed there, 14. I've added a 15th one, which I call unlawful retaliatory suspension. But we'll get there just now. The depressing part is that actually I think South Africa – given this process that's taking place here - fails all 15 or 14 of these. But let's see what the scorecard would say. This process, and maybe before we get into this, let me preface it by asking you. You said in one of our consultations one of the things we are missing is that the world is watching us as we're doing this process. Also, you linked that to the what you call the Pan African… the Pan Africanist mission or role of South Africa, as to lead in these kinds of things. Can you just talk about that? The world is watching. We know because you're here and Madame Kajuju here. But maybe you're right, maybe we are too internally focused. What are the dangers or the opportunities in us doing this exercise properly or wrongly, or improperly?
Ms Zulu-Sokoni: The South African example is a particularly poignant one for me, because from the time of your independence you have strived to ensure that you implement democratic constitutionalism in this country. Your Constitution, I think, is a model for many and you have established the appropriate oversight institutions in this country, particularly the institution of the ombudsman has been a leader in Africa. Simply by the fact that the AORC is housed in this country. And this country has also supported ombudsmanship. You are a leader. I would call you a leader in the field of human rights and ombudsmanship in Africa. So what has been going on here in South Africa is actually very telling on the continent. And that is why it is important for us. This is a reason in the OR Tambo Declaration we have included the African Union Commission in that document. And under article 14 on the charter on democracy, elections and good governance, the African Union's Charter. We have agreed with the African Union that we will spread the concept of the ombudsman in Africa, in the spirit of, of course, Pan Africanism. Really, to ensure that institutions of good governance are established, especially the institution of the ombudsman. So I say this because recently, of course, there was a judgment that came out of South Africa, I think it was Economic Freedom Fighters and the Speaker of the National Assembly, yes, yes. Where the powers of the ombudsman were discussed in that judgment. I hope I have the right case. Was it the Reserve Bank of South Africa?
Adv Mpofu: If you're talking about the Reserve Bank then that's a different one. EFF is the Nkandla Report. The one we were discussing in the morning, which was about binding reports. You are probably talking about Public Protector v South African Reserve Bank. Which was a 2019 judgment. 2019, volume six. Okay. Yes. You're talking about the one to do with the Reserve Bank mandate and the amendment of the Constitution.
Ms Zulu-Sokoni: Yes, where the Constitutional Court I think challenged the mandate of the Public Protector stating that the powers are not equivalent to a court.
Adv Mpofu: Yes, okay. Then you are talking about the Reserve Bank. That's the CIEX. It deals with one of the charges here. The judgment you're talking about whether it was a majority judgment and the minority judgment of the Chief Justice?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Okay. Yes, that's the Reserve Bank judgment. Okay, we'll come back to that judgment. We’ll deal with it first thing when we're dealing with the judgments later on. By the way, just for my own edification for now so that I know whether to lead you on that judgment or not later, or how to you lead in on it. Just high level, the majority in that judgment dealt with some of the things we are speaking about here. Scathing criticism of the Public Protector, and even imposed personal costs. And the minority judgment, I think, well, was of the view that the principles of the Public Protector institution would be breached if the court went that far. Which of those two judgments, the majority or the minority, do you agree with?
Ms Zulu-Sokoni: Well, speaking as an ombudsman, really, I must agree with the minority judgment, yes.
Adv Mpofu: Alright. We'll get back to that at a later stage. You were now busy telling us about the AU involvement. Just for quick reference, Chair, its page 271. I'll read it out. That’s the last page of the OR Tambo principles. It says, implement measures aimed at accelerating the implementation of the AU shared values, giving priority to the EU charter on democracy, actively disseminate provisions of the charter that relates to governance with special attention, and so on. Is that the section you're talking about where the next stage is to try and have these principles adopted at AU level? It’s a double question, which is, how far are we in that process? Have we yet succeeded?
Ms Zulu-Sokoni: At this juncture, I think because of the Covid, this is what interrupted the whole issue. But we do have I think observer status at the AU. And I hope we will now take it up further. Now that the Covid crisis is over.
Adv Mpofu: And, by the way, talking about expulsion, which we spoke about earlier in the context of IOI. Do you know what the situation is with the European Union vis-à-vis membership of that body if a country flouts these principles?
Ms Zulu-Sokoni: I can't recall the particular provision. But I was, I think, I must say I was informed by one of the members of the IOI board of directors that a member that does not have an institution of the ombudsman cannot continue to be a member of the EU or if a country is applying to be a member of the EU, they must have an institution of the ombudsman. Otherwise they cannot be admitted as a member of the EU.
Adv Mpofu: What I'm getting at is, well, you can have an ombudsman institution, call it whatever you like, but if you had one that does not comply to the Venice Principles, for example, would you be admitted?
Ms Zulu-Sokoni: If a country is not compliant, I wouldn't be able to say. I'm not an authority on the EU. I wouldn’t be able to say.
Adv Mpofu: Okay, we'll find that information. Now the reason I was prefacing that question is insofar as you are trying to get the African Union to follow suit. Would that be the direction that hopefully one day having a compliant institution of ombudsman would be one of the criteria for participation at that level?
Ms Zulu-Sokoni: Exactly.
Adv Mpofu: Thank you. Okay. Now let's go back to, you can see I'm running away from that list that I was saying is depressing me. But we have to go through it. So, the first thing is restrictions on budget of staff. Well, we fail there. I think the witnesses that have come here have said that the budget is clearly one of the most serious constraints.
Chairperson: Just pause, Adv Mpofu. Adv Bawa:
Adv Bawa: Given the nature of the witness, I haven't kicked up a fuss about leading. But I think if the witness is going to conclude that the country has failed in any reasons of this, then it must be based on reasons that the witness believes, so not Adv Mpofu’s evidence, I mean, the leading.
Adv Mpofu: I'm not really doing anything. I don't know what you're talking about. I'm saying that the witnesses that have come here, Ms Motsitsi, Ms Thejane, maybe to some extent Mogaladi, I’m sure there are more, have all said that the budget… there's even a document. I can't remember. It was supplied to us by you, which specifically states that the one of the weaknesses in this country is the inadequacy of the budget. I think this is almost common cause. So I don't know.
Adv Bawa: No, Chair. There is a difference between a suggestion that the budget provided to the Public Protector’s Office is inadequate to meet its needs, and a suggestion that there's a threat to the institution or as punishment or form of retribution that money is taken away from the institution.
Adv Mpofu: I didn’t say… Who said that?
Adv Bawa: You didn't say that. I'm suggesting to you that when you do that, let's just be clear about what is being put to the witness and what the witness is saying.
Chairperson: Okay, thank you Adv Bawa. Adv Mpofu?
Adv Mpofu: Okay, thank you, Chair. Alright. I don’t know what's happening now here. I'm just giving you information that about three or four of the witnesses, which were called by the evidence leaders, have confirmed in writing and in memoranda that were presented here. I don't think anybody denies this. Even our parliament cannot deny it. It's because we have many other demands, like everyone else. But it's common cause that there is inadequacy of the budget for the Office of the Public Protector, and the Public Protector has said it probably in every meeting she has ever attended to the Portfolio Committee. So I don't know what the issue is. I'm saying to you, because you're an outsider, unlike me, even more you were not here to listen to all the witnesses. I'm saying that this issue should not be contentious because the witnesses of the evidence leaders have confirmed it. Can you just accept that as information?
Ms Zulu-Sokoni: I will state that most ombudsman offices are underfunded. Even in Africa, even in Europe and America; they complain about the funding to the office. I can't say about the funding to this office, but I know for a fact that most offices underfunded.
Adv Mpofu. Thank you very much. Okay. The next one is unlawful removal of incumbents. That's another threat, isn't it to, let's not be generous? The heading is called possible threats to ombudsman institutions. Another possible threat would be an unlawful removal of an incumbent, let's say for example, arising from a flawed or unfair process, correct?
Ms Zulu-Sokoni: Yes, we have had examples where ombudsman have tried to appeal for assistance, either to AOMA or the IOI, where they feel that they're being removed unlawfully. So, that's a reality. It does happen.
Adv Mpofu: The next one is the failure to appoint or elect a new incumbent. Okay, that one we can leave it at the level of a threat. Obviously, something like that might happen if there's, let's say, there's a legal process that interdicts the appointment of a new incumbent.
Ms Zulu-Sokoni: It is a threat, actually, we have had, I think, one African country that has even completely removed the office of the ombudsman, even from its constitution. The office just doesn't exist. I can't remember which country it is. So, for us, it was a threat. It was a concern. And there are some countries where there's supposed to be an ombudsman, and there is no ombudsman appointed. Yes.
Adv Mpofu: Yes. And by the way, talking about new incumbents, I'll ask you this. I'll try to ask it theoretically. If a particular incumbent, let's say, was left with six months of a term of office and a particular country pursues the removal of that person at the estimated cost of R1 million per day given load shedding and all sorts of things. I should not have mentioned load shedding. Does that even make sense? In other words, if you have a costly exercise to remove a person who was halfway to the door basically. I'm saying that apropos the threat that that might pose for example, to the process of appointing a new incumbent, let alone the process of handing over to that new incumbent by the old one. What would that be indicative of? I'm just exaggerating, let's say the person was left with two weeks, and then we start a process like this and spend so much money and time and resources and lawyers and what have you. Should that be seen as a threat or something to be encouraged?
Ms Zulu-Sokoni: It really depends on the gravity of the charges that have been pressed against that particular ombudsman.
Adv Mpofu: Let’s say, if like they killed everyone in the office. I'm sure even if it only one day left, we have to do something. But go back to the examples that I was giving.
Ms Zulu-Sokoni: If there is actually no substantial charges against that person, it's just on the whim of an authority to have that person removed, of course, it can be perceived to be a reprisal.
Adv Mpofu: Thank you. Right, the next threat is called political pressure on incumbents. Oh, I don't want to bore you with the details. I gave you an example of the judgment. So the next one, number five, is incorrect charges on incumbents resulting in arrest. Now let's pause here. You mentioned the Reserve Bank case where the judgment that you don't like, the one that imposes personal costs on the Public Protector. What's wrong with that? In terms of the principles we've been discussing.
Ms Zulu-Sokoni: Well, really it looks like the functional immunity of the office has actually been stripped away completely. But having said that, I don't know how it is here with the South African system. But I think in our system for someone to take on the personal costs or the cost of another party. I think that person… the office holder would have had to be a party to the proceedings, really. From the way I understand it,
Adv Mpofu: Fair enough. That's true. Well, I tried to argue that once in the Constitutional Court. I didn't find favour. But assume for a minute that the person is a party. I'm saying that from an institutional independence point of view, is it a good thing to pursue the personal personally as a person for work that was done in the capacity as a Public Protector or an ombudsman?
Ms Zulu-Sokoni: The person is functioning officially in their office. They are not carrying out a personal duty. So it really compromises the independence and integrity of the office, for the officer to take personal responsibility for actions that were carried out in an official capacity.
Adv Mpofu: As if that's not enough for the same transgression, quote unquote, of the CIEX matter. This one offended very big, powerful people. So apart from being mounted with personal costs, the Public Protector is also facing criminal charges. That goes to that threat of incorrect charges on incumbents resulting in arrest. Okay, she was not arrested. But for the very same thing for which you say she should not have been subjected to personal costs. The very, very same thing she’s also being charged criminally. What does that do for institutional independence?
Ms Zulu-Sokoni: I think this goes to the very heart of ombudsmanship. That the office of the ombudsman was set up to investigate the executive. So just my opinion, I don't think that the executive arm of government should be allowed to get back at the ombudsman using the court system, because these are the costs which are supposed to be borne by the respondent institution, and then they are cast upon the Public Protector personally. Secondly, to have criminal charges cast against the Public Protector, again arising from the same set of circumstances, it really just sounds like victimisation. I'm really sorry to say it. It's a bit much because this is – again I must go back to my previous statement that – this is an office that is constituted as a corporate sole. This is a single person in an office being asked to shoulder the responsibility of an entire organisation, because there's an entire system that is behind her or him.
Adv Mpofu: Well, that is what it is, as they say. What about double jeopardy, if the person has already been punished, rightly or wrongly, in the court, is it fair to then punish them again in the criminal courts for the same thing?
Ms Zulu-Sokoni: Repeat the question, please.
Adv Mpofu: If a person has been punished by punitive costs, the word punitive means punishing. If a person has been punished by the imposition of punitive costs, is it fair then to punish them criminally for the same thing? It's called double jeopardy.
Ms Zulu-Sokoni: Okay, I mean in the criminal law you will fine an accused person at the end; convict and say you pay a fine and failure to pay this fine, you face imprisonment for so long. So this means that it's an either or situation. It can't be both.
Adv Mpofu: Okay, thank you. Okay, the next one is organisational changes. Okay, we can jump that. That obviously follows from, for example, an unlawful suspension and will lead to organisational changes. The next one says, changes of mandate or statute legislative interventions that could impact the office. I think we've dealt with the issue of the mandate. That the mandate should or rather in the example that happened in your country where the mandate was changed from an executive to a parliamentary process. Earlier you and I called the step backward when you move from the parliamentary framework back towards an executive framework. Surely that would be a threat, correct?
Ms Zulu-Sokoni: Yes, yes.
Chairperson: Let’s pause there just to take a tea break.
Adv Mpofu: Thank you, Chairperson. Sorry, I just lost my place. No, its fine. Thank you. We were at page 349. Yes, okay. I'll try and go through this quicker. I think we just did number seven. Number eight is reduction of formal independence. We've covered this earlier in the morning. That's obviously a threat to the institution, correct?
Ms Zulu-Sokoni: Yes, please.
Adv Mpofu: Yes. That reduction can come in many ways, either undermining functional immunity, or, you know, subjecting the Public Protector to unnecessary pressure and all that. Okay, and then unstable political environments. Okay. So, I spoke about factionalism. This may or may not be a threat, again, depending on the country. In your country, for example, we've heard that there have been five different governments; three different parties. And yet, that was not used, it was not really a threat. Well, maybe it was, but at least not one that was unmanageable. You may share if you are free to do so, you don't have to, whether there were any challenges around the changes of government here and there but which were managed.
Ms Zulu-Sokoni: No, there were no challenges except there was just ignorance. I think ignorance is one of the ombudsman's biggest challenges. Yes. So you would get people who with a change of government would ask, but you’re still in office? So just not understanding that there's that aspect of security of tenure for the office of the ombudsman.
Adv Mpofu: No, fair enough. Okay. No, I think that's a fair statement. So ignorance, sometimes it's not that people are being malicious, but it's just sheer ignorance.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: So for example, if someone says, well, we just going to be bound by judgments or a suspension has nothing to do with us. It might not be from coming from a place of being malicious, but just pure ignorance of how these things work, correct?
Ms Zulu-Sokoni: Yes, definitely.
Adv Mpofu: Okay. And then it says, defamation of incumbents and or staff or media. I've told you that, in our case, there's a political party that called the Public Protector a spy from day one. In fact, from day zero before she started on day one, and that was subject of a defamation suit that went up to the Supreme Court of Appeal. But that's another way of undermining independence of the Public Protector isn't it? Just pure sheer insult?
Ms Zulu-Sokoni: Yes, it can happen. Definitely.
Adv Mpofu: And then administrative or judicial harassment. I read out the judgment about reprisal from the President in our case. Judicial harassment, I don't know about that. But it says administrative or judicial harassment. So that both the administration which is the executive side or the judiciary could be an instrument to harass a Public Protector, correct?
Ms Zulu-Sokoni: Yes, definitely the administration could be prosecuting or commencing civil actions against the ombudsman and the judiciary may also play along to the gallery. Yes, it's possible.
Adv Mpofu: You also said something earlier about the judiciary. And this is about the next topic that we're going to discuss. But just in this context, that the judiciary would feel less threatened, I think, in a situation where the remedial action is recommendations than when it is binding. Can you explain that? In what way would that play into this space of the judiciary being part of the threat?
Ms Zulu-Sokoni: I think from my experience, it's seems like they perceive the office of ombudsman as creating a parallel court system when you give the ombudsman binding powers. But when the reports of the ombudsman only have the effect of a recommendation, usually there isn't so much interplay with the judiciary. They have no reason to interfere in the functions of the office. Yes.
Adv Mpofu: Okay, well, I'll make that example maybe later when the Public Protector testifies. But one or two of the judgments in this particular case relates to a section of the Public Protector Act that gives the Public Protector the discretion to investigate matters that are older than two years.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: But the interpretation of that section, there are two possible interpretations. You can interpret it as the Public Protector has power, extensive powers, but she has an discretion to investigate even if something is 100 years old, if it's important. Or you can interpret it as a normal prescription thing that says, thou shall not investigate something that's over two years, even if the person stole 200 billion. And if it's one week late, then you can’t touch it. And this is the kind of issue where in judgments that I'm talking about – the Mr Gordhan and Pillay judgments – the courts went to say that no, the Public Protector was basically prohibited, and she even got another personal costs for that, from investigating the "rogue unit" in that case. Just because it was brought to her x number of years after the actual activities. Now I'm saying in that kind of space, do you think that if it's a recommendation regime, that kind of clash between the judiciary and the Public Protector might have been avoided?
Ms Zulu-Sokoni: Yes, definitely, it was going to be avoided, for the fact that nobody has to worry when the report is only supported by recommendation, but when the reports is supported by binding decision, then people worry and they say, what is the effect of this particular investigation going to be? Having said that, again, it is in a way an injustice for members of the public when the time limit for submitting complaints to the Office of the Public Protector is read very, very narrowly, because there are always exceptions to that rule. For example, for poor people who come from the rural areas, they may not know that they can actually appeal. They may not have the money to reach the office of the ombudsman. And it may take more than two years to bring complaints to the office of the ombudsman. So usually that particular clause is read very, very loosely. And it actually gives even the ombudsman discretion in a lot of the jurisdictions; discretion to have some exceptions to the general rule. Yes.
Adv Mpofu: Well, in our country, it has been now twice, three times actually. It was seen as a prohibition, rather than, let's call it, an enabling statute, which actually gives her the leeway to intervene if the situation so demands. Okay, then attacks on incumbents, verbal or written. Okay, that goes with a spy example and defamation. It’s the same thing. And I think she's even been called the enemy of the state. Ill-treatment of incumbents. Well, we can spend the whole day on this. What happens? Why do people lose their humanity and treat a person as if they are an object. They don't have family. They don't have any feelings. They can just be vilified and ganged up against and subjected to blatantly unfair and biased treatment. What drives that? Okay, I know, as far as the executive is concerned, it's obviously a form of reprisal, but generally if an institution such as parliament or any other institution?
Ms Zulu-Sokoni: I think in a lot of instances where these things are happening, it is because the office of the ombudsman is not being accorded the appropriate protections, which have been set as a standard in international law. So we can again put it down to ignorance, I think, and for want of better words, I think sometimes it's just overzealousness, not knowing there are particular standards that have to be accorded to this particular office. Looking at the nature of the job that this particular office holder carries out and then ensuring that because the office holder is carrying out a very unique responsibility, there have to be appropriate rules, regulations and standards that have to be afforded to this office, when carrying out any process against that office.
Adv Mpofu: Thank you. And the double standards, what brings that about? For example, what drives a political party or individuals from acting like if it's the Public Protector reviewing the process, they say, no, we're continuing. But when it's one of their own, if it's the President, then because it's a review, no, we're not continuing the party line, what have you. What brings that kind of double standards or opportunism and duplicity?
Ms Zulu-Sokoni: For that, again I will speak to the fact that this particular office is vulnerable because it investigates the executive. So double standards are going to be used to rein in the office. Yes, to ensure the office does not carry out its duties accorded by statute or by constitution.
Adv Mpofu: Yes, okay. Maybe I'm putting the question too vaguely or because you're not familiar with the situation. I'm saying that if literally the same logic applies to two situations. Let’s say it's the impeachment of the Public Protector and the impeachment of the President and the same people behave differently. In other words, in the one case, the ill treatment comes in the form of, well, we don't care whether you're going to court or not. But in the other one, it is okay, because you're going to go to court we’ll spare you. In other words, coming from the very same people. What does that say about the integrity of a country or the threats to the first institution?
Ms Zulu-Sokoni: Well, it is definitely a threat to the office of the ombudsman when two or more entities come against the office and try to use, whether it's the law or they try to use administrative rules and regulations against the office. So, it is a definite threat to the office. And that is a reason why.
Adv Mpofu: Yes. And then the last one on that list is death threats to incumbents and staff. Okay. We know that there have been security threats, and I'm sure it's not unique to us. One of the guidelines say that there should be adequate security measures provided, correct?
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: As I said, the last one which I added, number 15. Just to make it a round figure, was an unlawful or retaliatory suspension. That would be a threat as well. Correct?
Ms Zulu-Sokoni: Yes, it's falls under administrative or judicial harassment.
Adv Mpofu: While we're on the subject of judicial harassment, if we have a situation where the courts make it fashionable to punish the Public Protector with personal costs, would that form part of judicial harassment?
Ms Zulu-Sokoni: Yes, personal costs, really, I have to agree that it forms part of judicial harassment. It is totally unacceptable.
Adv Mpofu: Yes, you’ve made that point. I'm saying personal costs, let's assume for now that the personal costs was an acceptable way of dealing with the Public Protector. I'm asking a different question, which is, if the courts make it fashionable. In other words, it's instinctive. This judge gave personal costs; therefore, I'll also give personal costs, and therefore the third one will also give personal costs. It becomes literally almost instinctive to do so. What does that do for the independence of the office? This is the situation you said you read in the Commissioner for SARS case in the Constitutional Court.
Ms Zulu-Sokoni: Yes. It really weakens the office because the courts of law are a place of refuge. If you cannot go to the courts of law for protection, if there is no impartiality, then the office really is completely stripped of the basic protection that should be accorded – not even the office, the office holder.
Adv Mpofu: Okay, thank you. Yeah, we'll deal with that. Well, you should have accepted that judgeship. That word was exactly what Judge Madlanga used to say, if you do that you weaken the office and he said, you therefore you weaken our democracy. But we'll deal with that tomorrow morning when we do the cases. Now a general question. We've gone through this list of 14 or 15 criteria, and to be generous, we probably score lot less than 10%. Now what should a country do, I mean, objectively. Now forget about partisanship and so on. If you had a situation like this process here, and you called an objective person and said how do we fare against these 15 criteria and we find that on all of them – or 14 or 15 or 13 of them – you are found wanting. Obviously you should be worried as a country, but what lessons can be drawn from that situation and what should we do going forward? If I'm right that we fail dismally.
Ms Zulu-Sokoni: I think going forward it's very, very important for states to look at the institution of the ombudsman, not just from an narrow perspective as a national institution, but to also look at its international personality. Because really we are trying to build democratic institutions, for example, for Africa, throughout Africa. And it's very, very important that what we reflect in our jurisdictions can also be replicated in other jurisdictions. So it's just an issue of asking oneself, if what is going on in my jurisdiction, can be allowed to happen in another jurisdiction and adhere to the standards really. Yes.
Adv Mpofu: Thank you. Okay. Now I want to deal with, shall we call it the virtues. It can’t be nice if you have power to have a situation where you're going to be scrutinised by an ombudsman. You know, when you're supposed to have all the power to yourself, but I think our founding President Nelson Mandela explained it so well. That actually the government volunteers to have such scrutiny. For the sake not of itself, but of the public. And again, that's a point that is always missed in these conversations. Maybe the best way to illustrate it, Madame Sokoni, is by going back to basics. You've said this is an institution that started more than 300 years ago, actually 310 years ago in Sweden, as you indicated, in 1713?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And I'm now going to paragraph 10 of your statement. 1713, just to give perspective – we were still fighting different things, 60 years after the arrival of Jan van Riebeeck and 30 years after the arrival of another chap called Simon van der Stel. After whom a place called Stellenbosch has been named. So the wisdom of that King of Sweden is something that if he didn't do that, we wouldn't be sitting here, for example. But what do you think drove the Swedish king in 1713 to say, I'm an all powerful monarch, I've got all this power but there should be an institution that actually scrutinises me, on behalf of the people from which we've all benefited. Well, depending where you sit, I think Adv Mkhwebane has not benefited from that. She’s suffering from it. But, as people, if you can just then help us to trace this institution over the centuries. From the 18th century when it was established in 1713 up to where we are, broadly speaking, not year by year because otherwise we’d be here for…
Chairperson: Just a pause, Adv Mpofu. Adv Bawa?
Adv Bawa: Sorry, Chair, in assisting my colleague for us being able to move on. I'm not sure if last year we had this conversation. I thought we did but might not have. We don't take issue with paragraphs 10 to 16, which set out the historical background and unless it's got something specific to the motion, we're happy to accept the contents of those paragraphs as stated in the affidavit.
Chairperson: Okay, thank you. Adv Mpofu.
Adv Mpofu: No, thank you, Chair. So that's very useful but the point I'm really making is maybe a more profound one. More than whether the evidence leaders accept the evidence or not. It is to describe the nature of an institution which were the holders of power, surrender that power voluntarily for the benefit of the public. I'm saying from 1713 and up to 310 years later, that is still the underlying principle of ombudsman institutions, isn't it?
Ms Zulu-Sokoni: Just to answer it very quickly, very briefly. So when the Swedish king, I think there was some disturbance in the kingdom, he had fled Sweden, and he had actually gone to Turkey for refuge. When he went to Turkey for refuge, he found this concept of an official who handles complaints from the public on behalf of the ruler of Turkey. So he took this concept back when he went back to Sweden and I think made peace. The only way he made peace was to introduce this concept of the ombudsman to say I will cede some of my powers to this official who take complaints against the excesses of the king. Eventually, I think as the institution evolved by 1809, they had set up parliaments and things like that. And this official became answerable to parliament and not the king. They had refined the system. They were refining the system from 1713 up to about 1809. They had refined this system. So now to take the context to the present. When Tanzania set up the office of the ombudsman in 1966, the Tanzanian president then I think had had set up a one-party state and because he had set up a one-party state, people were anxious with this one party state. If we have complaints where are we going to be complaining to, so this is when he set up this office of the ombudsman to tell people that if you have a complaint you can go to the ombudsman and the ombudsman investigate all officials. I think they were investigating all officials, whether they were for the legislature, the executive or the judiciary. And this was replicated in Zambia in 1973. Dr Kaunda set up a one-party state. And he too, I think in order to convince the people that yes, this one-party state can work. He then established the Office of the ombudsman, it was then called the Office of the Investigator General. So in that sense, you can see that the office of the ombudsman was seen as a very powerful institution, which could help to protect the public against the excesses of the executive. So, from these three examples, I think.
Adv Mpofu: Thank you very much. That covers that topic. Then you've dealt with, I think we've already dealt with the interplay between the three arms of the state. What they should do versus what they should not do. In other words, they should be cross checking each other, not collaborate against the Public Protector?
Ms Zulu-Sokoni: Yes, well, I could also explain a little bit about that. In a proper working classical system, the ombudsman is, as I said, is appointed and be dismissed by the legislature. And the executive facilitates the establishment of this office, and at the same time funds it. And then the judiciary gives this office the conditions of service. And by the judiciary giving this office the conditions of service, it helps the office from being isolated. Because if the office is isolated, the conditions of service are just hanging. They are just being picked at the discretion of either officials of the executive or of parliament. This becomes a threat to the office of the ombudsman. So this is why it is very, very important that all three arms of government contributes to the establishment of the office. And this works as a protection for the office of the ombudsman.
Adv Mpofu: Yes, Now you've also, I think we've covered the. Or rather, let's just do this so that we get it out of the way. You've made this reference to the classical versus the hybrid model, and so on. Can you just very briefly explain what that's all about vis-à-vis the historical account of this office having evolved for the past 300 years and the first office in Africa have been established in 1966, as you say. And by the way, is it correct that some, that Africa’s first ombudsman institution predated some of similar institutions, even in the so-called western world?
Ms Zulu-Sokoni: Yes, the Office of the ombudsman in Tanzania was established in 1966. The United Kingdom established its office in 1967. And a lot of the other countries started establishing ombudsman offices much later. I think even the United States and countries like that. I just wanted to stress on the issue of the conditions of service. When the conditions of service of the ombudsman are not certain, it becomes a very, very big threat and a lot of ombudspersons are having this problem. So, the issue of isolation. The ombudsman becomes isolated. The ombudsman cannot go to the executive, cannot talk to the executive. The ombudsman goes to parliament, and through the web system, again, the ombudsman becomes defeated. And then, so the only other protection to prevent the ombudsman from being isolated is to have the conditions of service under the judiciary. So, this is the system that is pertaining in Namibia. In Namibia, the ombudsman enjoys the terms and conditions of service of a judge. So the ombudsman doesn't have to fight for his own terms and conditions of service. He just waits. The judiciary themselves just negotiate with the government. And when they get their conditions of service. He's just written a letter to say, oh, these are your conditions of service. Now you need conditions of service. It's a protection. Isolating the ombudsman to fight his or her own battles, especially with respect to the terms and conditions of service is really, really a threat to the institution of the ombudsman.
Adv Mpofu: Thank you, you know that what you've just said, is probably lies at the heart of what we're dealing with here. In many ways. So the Namibian situation is, I think would, if it applied in South Africa, again, I keep on saying we wouldn't be here. When the Public Protector gives evidence, one of the things she will say talks to what you're saying Now namely that there are actually no conditions of service. You are talking about conditions of service which must be adequate or whatever. Well, here they are zero. You just get appointed in parliament. You go to Pretoria and we'll see how you get by for seven years. Now in that situation, is it fair? How can you even have a disciplinary process? Against what? You know, if parliament fails or the appointed body fails to give you even a one-page thing that says, okay, you must go to work at eight and finish at five, and take this and the other. You just left on your own devices. And then when something happens, they say, oh, well, now I must chop your head. The same people who failed to give you conditions of service. Now what you're saying is that in Namibia, it becomes easy because obviously the conditions of service of judges have been established over years. So all the Public Protector really has to do is to just fit in with that system.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Now what do you have to say about the situation where there's zero conditions of service, not even one? Well, except for the Act and the Constitution, which we can all read, but there's no conditions of service?
Ms Zulu-Sokoni: That is a real threat to the independence of the office.
Adv Mpofu: Yes, I'm sorry, I missed that. I was just checking with the Public Protector. Just to clarify that point. It's what in normal parlance is known as a job description. There's no such thing. So the office kind of develops its own guidelines just to make sure that there's a way of dealing with the hierarchy. Who does what, for example. She would delegate to the Deputy Public Protector this and that power, even that is left to her own devices. But we'll deal with that in another context. But can one who doesn't have a job description formally imposed, and I use that word advisedly, by the employer, quote unquote, be then disciplined by that employer? As I say, against what? What would be the yardstick?
Ms Zulu-Sokoni: I think these are the issues that are very close to the heart of the independence of the office of the public protector. In my situation also, the terms and conditions of service have not been given but the new constitution states that where the public protector has to be disciplined, he'll be disciplined in the same way that a judge shall be disciplined. So it goes to the judicial complaints commission. Someone can take a complaint to the complaints commission.
Adv Mpofu: Well, imagine if we had that system of Namibia and Zambia, then it would have been impossible to suspend the Public Protector. In our case, in South Africa, it also goes to something called the Judicial Complaints Commission. Then it goes to something called the Judicial Conduct Tribunal, which is like the equivalent of this Committee. Only once that body finds you guilty is there a possibility of a suspension. As I explained to you earlier, here it was for retaliatory purposes; it was accelerated. The advantages then of having the conditions of service at least and that includes remuneration, car allowance, whatever, being the same as that of a judge also include that functionality of not having to reinvent the wheel. Correct?
Ms Zulu-Sokoni: Yes, you don't have to reinvent the wheel and you don't, there's no retaliation against the office holder. For instance, in my case the terms and conditions of service were for so long not known that at the end it was just put within the civil service structure. Just somewhere in the middle. So it becomes difficult again because now there are a number of officials within the executive who are at a higher salary scale. It means that they're senior to the public protector, and how can the public protector investigate those officials independently? It goes against the whole concept of the independence of the ombudsman.
Adv Mpofu: Yes. Okay, thank you. Well, again, on the positive side for South Africa, and I think this might even be an area where, I don't know, I've not done a comparative study, where we better than others. I hope. But section 9 of the Public Protector Act in South Africa actually goes a long way towards that, insofar as protection is concerned. It might be one of the few examples, but you can tell me if I'm wrong, where the Public Protector is actually protected by that section exactly in the same way as a judge by contempt of court protection, where a person can go to jail, literally, in terms of section 11 of that Act for insulting the Public Protector. Well, not that it has stopped anyone from insulting her. But at least theoretically. That section, I think section 9(1)(b) actually uses the word in the same way as if it was a judge. So it says if you insult, Section 9 it says contempt of the Public Protector, which is basically the same as contempt of court, no person shall insult the Public Protector or the Deputy Public Protector. And as I say, well, you will be surprised. She has been called all sorts of things, including an agent of state capture and corrupt and what have you. And those people got away with it. But it says at 9(1)(b) in connection with an investigation, no person shall do anything, which if the said investigation had been proceeding in a court of law, would have constituted contempt of court. You see, total protection? Well, at least in the South African context, I think it's the only office that I know in this country that is protected with at literally the same level of a judge. So surely that's a good thing. Correct?
Ms Zulu-Sokoni: It is a good thing.
Adv Mpofu: So Hon Kajuju must reconsider her decision to expel us.
Ms Zulu-Sokoni: Yes, this provision for contempt of court is actually sort of generic throughout jurisdictions and we also have it in our jurisdiction, but it just comes to the conditions of service. When it comes to the conditions of service, they will give all the powers of the courts and say, oh, you'll be there disciplined like a judge and everything. Just when it comes to the conditions of service, it becomes…
Adv Mpofu: Exactly. Hence, you can suspend willy-nilly. Okay. Just to complete that point, section 11 of our Act is where it is criminalised clearly. It says, any person who contravenes the provisions of section 9 of this Act or interferes with the functioning of the Office of the Public Protector, in terms of section 181(4) of the Constitution, shall be guilty of an offence. Now this is a very serious provision, it means any person, including this parliament if it didn't have immunity in terms of section 58 of the Constitution. Any person who interferes with what you and I have called functional autonomy of the Office of the Public Protector and interferes with how it hires people and all that, is guilty of a criminal offence and liable to a fine not exceeding R40 000 or to imprisonment for a period not exceeding 12 months, or to both such fine and imprisonment. Now assuming there was no such thing as parliamentary privilege, would this be a sufficient protection from any institution in this country, whatever it is, it could be the milk board or whatever, interfering with the functional autonomy of the Public Protector?
Ms Zulu-Sokoni: It does provide protection. It does provide protection.
Adv Mpofu: Okay, so if we remove parliamentary privilege. We can just send the police starting with the Chairperson. Maybe we will challenge him next time. You must have this meeting outside in the street. No, sorry. On a serious note, okay, all I'm saying is that whether in practice it works or not, at least you can be sure that our legislature or the people who did this Act in 1994 tried their best, at least at a structural level to give a tick to the protections provided in section 181(4), for example.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Thank you. So, Chairperson, the next sitting can we have it in Gugulethu? Next to the police station? Right now okay. You were still explaining to us broadly; just wanted to clarify that point of the difference between the so-called classical and hybrid model.
Ms Zulu-Sokoni: Yes, in the classical ombudsman system, which exists for example in Zambia, Malawi, Angola, Mozambique. These ombudsman institutions investigate solely maladministration and they are all accountable to parliament. Because of that they operate relatively without any conflict of interest. But where you have a hybrid ombudsman institution – it could be an executive ombudsman or it could be a parliamentary ombudsman – it will have multiple mandates. So it will have the mandate to investigate maladministration and/or corruption and human rights. For example, the Israeli office of the ombudsman is also the auditor-general so they've merged both functions. With the issue of the multiple mandates, I think the only drawback may be that the ombudsman function may suffer. It may be relegated and you find that the other mandates, for example, human rights or corruption, they become superior. They are given more attention by the ombudsman office. Secondly, when there is a mandate like corruption, the perception by government or members of the public or the opposition may be that this is a law enforcement institution and they want to have the office operate like a law enforcement institution.
Adv Mpofu: Thank you. I now want to come to the topics that I said in the morning for me defines really your evidence. In your evidence, and when I summarise towards the end, there are maybe four or five broad themes, including these issues of protection, of independence and so on, that we've covered. But if one were to reduce your thesis or departure point, it would be found in the last paragraph of your statement after you've referred to the case of Economic Freedom Fighters, which we'll deal with tomorrow. But your central thesis is at paragraph 40. Where you say, "However, it is evident that issuing binding decisions make the ombudsman amenable to review of his decisions by courts of law. The courts also seem to feel threatened by the judicial powers of the ombudsman and there's always a temptation by any one of the three arms of government to trim down the powers of the ombudsman, as evidenced by matters in Zambia and South Africa. Once the powers of ombudsman seem to overlap or to be shared by any one of the three branches inevitably the institution of the ombudsman may have to be reined in by the arm which feels challenged". Am I correct that ultimately you are a clear advocate, a proponent of the recommendations model, and the opponent of the binding decision model? For the reasons you've explained earlier?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Alright. Now let's go to that topic. In our situation, in particular as a young democracy, what, apart from the cases we'll deal with tomorrow, but just generally speaking, what would be your warnings, lessons, cautions, whatever you call it, against the binding decision model, which you are against?
Ms Zulu-Sokoni: First of all, the institution of the ombudsman, as I have stated previously, investigates the executive and obviously the officer will investigate very sensitive cases. And it's very, very important that during the course of investigation, the ombudsman has the complete cooperation of the respondent institutions, being the executive, emanating from the executive. So, when the decisions of an ombudsman are binding, when the ombudsman is carrying out investigations the institutions of the executive feel threatened. And the ombudsman may not get as much cooperation, even though you have provisions like the ones that we have seen, whether it is contempt of court for a party not cooperating with the office of the ombudsman. Secondly, where binding decisions are issued, there is usually a temptation to try to influence the ombudsman to issue a decision in a particular way. There could be such a temptation, and it defeats having this office given the high status of judge, having the institution created by a constitution, having a clause on the independence of the institution. It defeats all these measures which have been put in place to protect the office of the ombudsman once you give an ombudsman binding powers. Thirdly, you open up the office to constant litigation, because respondent institutions will not be happy. They’ll want to challenge the decisions of the ombudsman. They will be dragging the ombudsman constantly to court over the decisions that the ombudsman has issued. Fourthly, it just becomes expensive for the ombudsman as now it has to create a budget for litigation. So the best protection that you can give an ombudsman office is to ensure that the reports of the ombudsman have the effect of recommendations and not the effect of binding decisions. It just ensures that the whole process follows through to the end without any interference. No ripples in the system.
Adv Mpofu: Of course, like everything in life, it's give and take. What you are saying is that what we get in respect of the binding nature of the powers – which at face value seems like a good thing because it can be ignored – but we lose independence, we are vulnerable to harassment, budgetary constraints. Again to come back to my refrain, it's possible at least I won’t put it higher than that had South Africa the recommendations model we wouldn't be sitting here, because it's what you call a particular ripple effect. We're here because there were judgments against the Public Protector. There were judgments because members of the executive in the main challenged the decisions. They challenge the decisions because they are binding. The chain reaction is clear. For anyone who has eyes, what has brought us here is in a way the regime we've had since the Nkandla judgment in 2016 up to now because all the things you have mentioned have happened here. The budget has shot up. This particular Public Protector has probably been in court for all her term. And now here we are, she's being harassed, or given the ultimate death sentence-equivalent of her office by simply being here. Let me put it this way. It seems to me that the only way to get out of that trap would be a constitutional amendment, and I'll be impeached in this country for suggesting such a thing. But on a serious note, is there any other way that we can come out of it except by amending the Constitution?
Ms Zulu-Sokoni: This binding power of the remedial action reports of the Public Protector in South Africa was brought about by way of a court judgment. I don't know if the courts would be willing to review their own judgment possibly because I think the Constitution does not say that the remedial powers of the Public Protector are binding. I'm not an expert on South African constitutional law but that is a way that it could happen. There is a case in Zambia where I know the Supreme Court reversed its own decision and in a particular case where they declared one of its judgments as bad law and, yes, reversed its own decision. That is a way apart from a constitutional amendment.
Adv Mpofu: I think the chances of the court reversing its own judgment..but even if it were, then one would have to wait for a case which may never come. In the meantime, we'll be in this kind of situation. But okay, that's a debate you can have offline. The point of the matter is that the Nkandla judgment was, at least from the point of view of the Constitutional Court, an interpretation of our current Constitution. I was in that case; it related particularly to section 181(4), section 96, and even the Public Protector Act. The sum total of what we argued there was that that interpretation means that we should have the binding model, and the court agreed. But so that's why I'm saying, short of constitutional amendment, we should then specifically say it prefers the recommendations regime. I can’t see us coming out of that here. By the way, in your country, you're in the same position, just to be clear. So you're not criticising us for that, just because you maybe come from a better situation. Isn't it true that the 2016 Amendment in Zambia also introduced the binding regime?
Ms Zulu-Sokoni: Yes, it did.
Adv Mpofu: Unlike us, you don't have a constitutional court case that affirms that position or do you? It's spelt out in the Zambian constitution?
Ms Zulu-Sokoni: It's spelled out in the constitution and we do have a judgment, which stated that the binding decision-making power of the public protector is not absolute, and it can be subjected to judicial review by the high court.
Adv Mpofu: Okay. The Zambian court case distinguished between court judgments and the remedial action of the Public Protector?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: It relied on one of our cases from the SCA, Home Affairs v Public Protector, correct?
Ms Zulu-Sokoni: Was it not the Nkandla judgment?
Adv Mpofu: No. Well, it was the judgment of Judge Plasket in the Home Affairs case. But we'll get to that tomorrow. Let's just say, Zambia relied on a South African case to do that. So once again, we led you in the opposite direction. But in that, was your office a party to that litigation?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And were you on the successful or the unsuccessful side? In other words, what was your argument? Was it that the powers should be binding or they should be a recommendation?
Ms Zulu-Sokoni: Our argument was that because the powers were binding, we could not be subject to judicial review. Then the court disagreed and said, no, actually, insofar as it concerns the court, your powers are not absolute. You can be subject to judicial review and they actually quoted a South African authority. What was so perplexing for us was that the binding power of the reports of the Public Protector in Zambia was actually contained in the constitution very clearly whereas the South African judgment they're relying on here was the one that actually imbued the Office of the Public Protector in South Africa with binding powers.
Adv Mpofu: With respect to your constitutional court, actually, the Home Affairs judgment was about whether the Office of the Public Protector is an organ of state and is subject to PAJA, or legality review. So I think they missed the point, but it happens to the best of us. The case that we're talking about, just to be sure, it's called Public Protector for the Republic of Zambia v Indeni Petroleum Refinery Company Limited in 2019?
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: Okay, then, yes, you did rely on – in fact, I must have just forgotten because I'm getting this information from one of your speeches. The case that they relied on was Minister of Home Affairs versus Public Protector, which is a 2018 case here of the SCA, not even the Constitutional Court. Okay. All right. So at least we are in the same boat as Zambia when it comes to this conundrum of binding versus recommendation remedial action, correct?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: And you've said that the classical model or the correct model or the better model is the recommendation regime. Do you know, off the top of your head, internationally, and maybe Hon Kajuju would also have a perspective on this, whether we and Zambia are in the minority or we are in the majority with most countries, or is it 50/50?
Ms Zulu-Sokoni: We're in the minority.
Adv Mpofu: We're in the minority, okay. Thank god. Needless to say then our regime is more prone to reprisals than the other model. All the things we spoke about, the threats and what have you, correct?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Now are you okay? Are you fine? You're not tired? Do you want a five-minute break? We've been going the whole day.
Ms Zulu-Sokoni: I’m fine, thanks.
Adv Mpofu: Are you still fine? Okay. I asked you during the break, you said you're still able to push. Okay, please indicate if you need a comfort break or anything like that. I'll see what I can do. I’ll ask the Chair. I'm going to the United Nations now. If you go to page one of your statement; paragraph one. Okay, we'll paraphrase this because it's late in the day now. It would be safe to say, I call this just for my own shorthand when I was making my notes, I called it the December movement.
Adv Bawa: Sorry, Mr Mpofu. We don’t take issue with this section either.
Adv Mpofu: Pardon?
Adv Bawa: We don’t take issue with these paragraphs.
Adv Mpofu: Thank you. That's good to know. I call it the December movement because it looks like everything happened in December. But that's just, the only system is like that when they do something in a particular manner. Then they'll always be meeting in that manner. But on a more serious note, we have a series of instruments from the United Nations, which have culminated in the what you had earlier said. The embracement, if there is such a word, of the Venice Principles, starting in December 1993. That's your paragraph two. There was adoption by the United Nations General Assembly of the Paris Principles, correct?
Ms Zulu-Sokoni: Correct.
Adv Mpofu: And thereafter, over the years, there were further adoptions. There’s one in 2010. 21st December 2010. And I just want to highlight there that, again, the key words there were independence and autonomy. Correct?
Ms Zulu-Sokoni: Correct.
Adv Mpofu: Then in 2014. December 18, 2014. There's another resolution of the United Nations. And again at paragraph three, it talks about strengthening of independent and autonomous ombudsman institutions. The same two words that have found their way into the OR Tambo principles, correct?
Ms Zulu-Sokoni: Correct.
Adv Mpofu: Then we have the UN Resolution 68/171, that gave the principles. The same principles that we had in the IOI document that ombudsman institutions should not face any form of reprisal or intimidation, including political pressure, physical intimidation, harassment, or unjustifiable budgetary limitations. Just to wrap up something that my learned friend had raised about the alleged leading. Its Bundle D, page 3906 Let's just get that out of the way quickly.
Chairperson: You're not clear. Just come again, Adv Mpofu?
Adv Mpofu: Bundle D, 3906. Okay, maybe I should just describe it here. It’s the witness statement of Ms Mogaladi. Remember, when I was responding to Adv Bawa I wasn't sure if Ms Mogaladi was one of the people who stated this but she's one of many. Yes, it's paragraph 104. Page 3906. Yes. This is what she had to say. I'm just addressing the Chair. Just for the record, Chair. The eradication of the backlogs and preventing the accumulation of further backlogs is therefore a priority for the PP, as it should be for any responsible executive authority. I can attest that it is also a priority for the executive manager and the COO. The main reason for the backlog is the lack of sufficient human resource capacity in investigation. This is a fact that is well known as the current and previous PP have consistently been raising this issue and requesting additional funding from National Treasury and Parliament. The issue is also reflected in the various annual reports of the PPSA". That's just to get that issue out of the way, Chair. That's why I put it as her statement says, "well known". Alright. We were at paragraph four. We were highlighting the measures that should be implemented against political pressure, physical intimidation, harassment and all that. Right, then the important one, or rather they're all important – but the most recent, I think, is resolution 72/186 adopted on 16 December 2020. And you say in your statement, this important resolution secured worldwide recognition of the ombudsman institution, and established the Venice Principles as the global standard for ombudsman institutions. That's why we spent so much time on the Venice Principles, and we went through all the various articles. This is now from 2020, the bible as it were for these institutions that has now been accepted globally at the level of the UN.
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: Thank you, and to which South Africa is a signatory, and quite frankly, is bound by? Correct?
Ms Zulu-Sokoni: Correct.
Adv Mpofu: And if South Africa is bound by the Venice Principles, and we've shown so many areas in which this process flouts those Venice Principles, what would be a message to the Chairperson of the Committee about the dangers of going that way? Assume again I'm right – I may be wrong – that this process flouts most of those provisions
Ms Zulu-Sokoni: I think the best that I can say is that we all, as African countries, we're on a journey towards attaining the perfect status of constitutional democracy and respect for human rights. It's a journey. So when you're on a journey, sometimes you can go forward and you find that you have taken a wrong turn. And you can come back and say, no, maybe this is the right route that I have to take. All of us are on the same journey. So, it's nice to reflect. It's nice to come together like this and exchange experiences, and see what it is that we can do for ourselves, as Africans. And maybe my biggest plea is to you, as South Africa, to say, you know, leaders, we are watching you. You are a proper constitutional democracy. And we want to follow by example, you already have the seat of ombudsmanship in this country. Sometimes you can try to lose a little so that you can gain a lot more for the larger majority, for the greater majority. As I was coming here, I was thinking about it and I don't know if I'm making a mistake in referring to this. I thought about I'm old enough to remember what was happening when Zambia and Tanzania were fighting for the independence of other countries like Mozambique, Angola, Namibia, South Africa. We sacrificed you know. We were not getting even small things like Coca Cola, you know, Fanta. If you had Coca Cola or Fanta it was a treat, because we were refusing to trade with South Africa, the apartheid regime. So, you know, for Rhodesia, then under Ian Smith, he would come freely into our country and just bomb us. So the frontline states decided to sacrifice something in order to ensure the greater good. So I can just appeal to you. Yes. Sometimes it's hard to say, no, let us go back a little bit, and look at what we can do in this situation. But you are fighting a battle for the whole of Africa, for the ombudsmanship of Africa. So what message are we sending out there? You know, all of us, so it's very, very important. So I think that's what I can say. Thank you.
Adv Mpofu: Thank you very much. Well, I'm sure the Chair has heard you and those that will listen to you. But maybe, to put it more crudely. If this kind of thing that's happening here, that has been happening for the past seven months, continues. And you say the world is watching. Africa is watching. You've been watching, maybe closer than others because you've been here. Hon Kajuju’s office has been here. She's been here. If it continues unabated, let's assume that those words of yours are not listened to and we just forge ahead to the bitter end. Whatever that is. What do you think the impact of that would be to somebody out there, some spirited person whose wish in life was to be the Public Protector, and they've been gearing themselves to apply for the next round? If what is happening here continues, would you advise your child to apply for such a job?
Ms Zulu-Sokoni: What I can say is we're all at different levels of development. Some African countries have strong democracies. Some have weak democracies, and we have to help them to move along. So, let's help each other. Let's raise up the institution of the ombudsman in Africa as a beacon. This is the only institution where the poorest of the poor can come. And they can summon even the president of a country to say, because me, Caroline Sokoni, I've got a complaint that I've not been given my passport. I want you Public Protector to call the President to come and answer this. It's the only institution which the poor man can call upon. And we shouldn't allow those poor people to lose heart and lose faith in this institution that has been set up for them. So I can just appeal to say it's a cry from all of us. And that's the reason I'm here, you know, from AOMA, to say: Let us save this institution. Let us not allow it to die. Let us not allow people to start distrusting this institution. And just by applying the international principles that have been discussed at this session, I think it's very, very possible that this whole situation can actually be saved.
Adv Mpofu: Yes. And I'd like your comment to this. You've commented about the use or the wisdom or lack thereof, of what I call transplanting judicial pronouncements into parliament on the notion that they are binding to courts, if they're also binding to parliament. But that's a debate for another day. You’ve also commented about the breach of organisational or functional autonomy, which is associated with the fact that this particular process has been dominated by, as I told you, 15 out of 18 witnesses who are just employees coming to air their gripes here and their personal grudges and all that. But what do you have to say about the fact that in all of this, whatever the cost may be, there is a cost. I think we're all clear on that. Bigger than money, I’m talking about cost in a broader sense. But actually, the worst thing that the Public Protector seemingly has done to deserve all this is that she wanted people to give services to the poor, chase the backlogs, make sure that the deadlines are met, produce clean audits, so that governance is at its best. For the first time within that institution: three clean audits in a row. For the first time, even her worst enemies agree that the backlogs are at an all time low since this institution was ever put into place. In other words, nobody is saying she came there and she harassed people sexually or she was drunk or what, you know. Obviously, I'm just saying there are things that would require the intervention of parliament, which are grotesque and unacceptable to all of us in society. But should a Public Protector, ombudsman, whatever you call it, be literally impeached for improving governance and delivery?
Ms Zulu-Sokoni: My answer to that would be no. And I also have a selfish reason for that. My selfish reason is that, you know, I've been ombudsman for 18, this is my 19th year. We have come a long way in ombudsmanship in Africa. And the reason I actually agreed to come here is because I felt that I can’t allow us to go backwards, to when I was appointed in 2004. You know, let us strengthen this institution. Let us encourage other African countries to set up this institution.
Chairperson: Okay, thank you. On that note, Ms Sokoni and Adv Mpofu, we will pause there and adjourn our meeting. We'll meet again tomorrow morning at 10.
Adv Bawa: Chair? Just a as a matter of housekeeping, can I ascertain from Adv Mpofu how long he's still going to be?
Adv Mpofu: I'm going to attempt to finish around about tea time. Not much longer than that. But I'll try to. I know there's one section, if you might have noticed, that I'm going to do mainly, which is the court cases, and the rest will just be cleaning up, so it shouldn't take that long. I'm mindful of not only the questions from the evidence leaders and also from the Members. So, I will not abuse the indulgence of the Chair.
Chairperson: Thank you, Adv Mpofu. Thank you, colleagues. Meeting adjourned. Thank you.
Dyantyi, Mr QR
Dlakude, Ms DE
Gondwe, Dr M
Hermans, Ms J
Herron, Mr BN
Joemat-Pettersson, Ms TM
Legwase, Ms TI
Lotriet, Prof A
Mahlaule, Mr MG
Mananiso, Ms JS
Maneli, Mr BM
Mileham, Mr K
Nodada, Mr BB
Nqola, Mr X
Peters, Ms ED
Siwela, Ms VS
Skosana, Mr GJ
Tlhape, Ms ME
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