PP Inquiry day 49: Caroline Zulu-Sokoni
Committee on Section 194 Enquiry
31 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 Committee met in a hybrid meeting to hear a second day of evidence by Ms Zulu-Sokoni, Public Protector of Republic of Zambia and representative of the African Ombudsman and Mediators Association (AOMA) and the International Ombudsman Institute.
The focus of Ms Zulu-Sokoni’s testimony was on international standards for Ombudsman officers, including the Venice Principles, OR Tambo Declaration and United Nations Declaration, which all map out a journey towards the internationalisation or globalisation of the work of the office. The witness stated that the South African Public Protector was the AOMA President and had requested the Association to intervene in the Inquiry on her behalf. This statement led to Committee members querying if the witness was there to present the international principles and standards of the Office or to intervene on behalf of the Public Protector.
The Public Protector's defence team presented the view that the South African system did not comply with the African instruments, let alone the international instruments, which stated that the Ombudsman or the Public Protector shall be immune from being sued or prosecuted in a personal capacity to ensure independence and protection from reprisals. It was noted that the impeachment of the Romanian Ombudsman by the country’s parliament was overturned by the courts because the standards for Ombudsman officers in Romania did not comply with international standards.
The judgment on the Public Protector v South African Reserve Bank case was discussed in detail with the witness supporting the minority judgment because she was adamant that an Ombudsman should never be saddled with a personal costs order, regardless of the circumstances. She was inclined to support that the Public Protector had turned to crowdfunding to pay the personal costs order as she was completely opposed to such an action, revealing in the process that her salary was a small fraction of the salary paid to the South African Public Protector. The Public Protector had to be protected at all times from her powerful adversaries, the Executive.
The witness’s main message was that the Ombudsman’s remedial actions should not be binding as that led to court action and in fact was the real reason why the Public Protector had suffered rebuttals in court and was facing impeachment. In the vast majority of countries, and over a long period of time, the findings of an Ombudsman were persuasive and not binding and international principles declared that the remedial actions of an Ombudsman should never be binding.
In response to questions, the witness stated that the spouse of the complainant should not serve on the Committee and that the complainant should explain her complaints to the Public Protector as part of the inquiry.
Members asked about the relevance of the evidence, considering that a South African constitutional expert was considered irrelevant by the defence team. Was it the witness’s assertion that the Office of the Public Protector and the incumbent are one and the same? Would it be fair to say that South Africa, by and large, meets the standards of best practice? Did the witness’s interpretation depend on whether the executive was bringing the complaint, rather than the legislature adopting a motion? What would constitute misconduct and incompetence by an Ombudsman and what should be done to hold an Ombudsman to account? Did the charges warrant mediators from the international bodies? Is the Ombudsman responsible for what happens within that Ombudsman’s office? When there is a repeat of the same errors, would you not say that it is misconduct? In what way was the impeachment process a threat to Ombudsmanship on the continent?
The Chairperson stated that the proceedings would continue with the Adv Dali Mpofu, SC, for the defence leading his witness, Ms Caroline Zulu-Sokoni, Public Protector Zambia, Defence Witness.
Adv Mpofu commenced with the details on the internationalisation of the Public Protector’s Office. (Page 268 of the witness’s statement)
Chairperson: Today is 31 January 2023. Adv Mpofu, we will continue where we left off yesterday with Ms Sokoni.
Adv Mpofu : Yes, I think we stopped around the time when we were talking about the 2020 UN General Assembly Resolution which, as I said, was the culmination of a series of resolutions, dating back to 1993, which dealt with the institution of ombudsman. I am not going to take you through those. Those various resolutions, there are many, were mentioned on page one and two of your statement. But just collectively, you said you would agree that they all map out a journey towards the internationalisation or globalisation of the work of the office. And the last one that I mentioned, which is 2020 December, specifically incorporates the various principles that you and I went through in some detail yesterday. Correct?
Ms Caroline Zulu-Sokoni: Correct.
Adv Mpofu: But now, I just want to isolate a few – I am not going into as much detail as I did with the Venice Principles - but using the OR Tambo Declaration, I will do a similar exercise to that we did yesterday. So, at the back of your mind, isolate some of the principles. I might not refer to them directly in relation to what is happening here in the in this Committee, because you might have missed some of the evidence. But when I do the argument for the Members, I will be able to demonstrate what conclusions I seek them to make as to whether or not South Africa is compliant with such instruments. You understand?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: All right. Now, if you can then immediately go to what we might call the African version of the instruments as endorsed by the African Ombudsman and Mediators Association (AOMA). By the way, who is the President of AOMA?
Ms Zulu-Sokoni: The President of AOMA is the Ombudsman of South Africa, the Public Protector of South Africa.
Adv Mpofu: Yes. And we established yesterday that the Secretary to the OR Tambo Declaration is her predecessor, Adv Madonsela.
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: So can we then go to that document on page 268? We had dealt with the most important standards, obviously, independence and autonomy. And I think that is what led us to all the other instruments. 1.1 is the one that really permeates all the documents, independence, autonomy, etc. And I think we went to town on the requirements of those two principles. So I want us to quickly then go through the remainder and I will not read all of them; I will just jump some of them and read those that are relevant to what I will argue at the end of the case. One thing it says is that the institution should not be subject to the direction or control of any one person or authority in the discharge of its duties. And I think you and I agree that that is a restatement of the principle of functional autonomy.
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: As it is also captured in our Constitution. Right then at 1.3, it says the discharge of the Ombudsman or Mediator’s function is subject to nothing but the law and his and her conscience. Again, I would, subject to your agreement, say that that is an expression of the wide powers that should typically be granted to those offices, correct?
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: And then here was an important one, which relates to something we discussed yesterday, when wrapping up, and this also shows whether our system complies with even the African instruments, let alone the other international instruments. The Ombudsman or the Public Protector shall be immune from being sued or prosecuted in his or her personal capacity and you described why that is important in respect of independence, and protection from reprisals.
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: What happens to a country like ours, which clearly does not conform with even the OR Tambo Declaration? What methods do you use at local or continental level, maybe to persuade or to popularise these principles? In the heading they are described as minimum principles. To me, that means this is the barest minimum that you should comply with to be a compliant Public Protector, not so.
Ms Zulu-Sokoni: It is correct.
Adv Mpofu: So, apart from trying to have these principles adopted at the level of the African Union (AU), because then, obviously, compliance would be driven at that level, is there anything at the organizational level that you do when you see that a country does not comply with some of these principles?
Ms Zulu-Sokoni: Yes, at the organizational level, when we are made aware of the fact that an ombudsman office is under threat, we do engage the governments and try to find ways and means in which we can help that government to ensure that the Office of the Ombudsman is allowed to function as it should. In the past, we had intervened in Malawi, and we also intervened, if my memory bears me right, in one of the West African countries where the man's office was under threat.
Adv Mpofu: Okay, good. Well, something as serious as a country that clearly does not conform with actual immunity, and I include the issue of personal costs because it is the same effect really, being civil-based monetary punishment, or immunity from prosecution - I told you yesterday that our Public Protector is actually facing prosecution right now regarding the CIEX case. Is that the kind of thing that you take up both at organizational level and at country to organization level?
Ms Zulu-Sokoni: Yes, exactly. That is the reason we are even here in these proceedings. We had actually requested that we should be given a platform. And we thank you for that. Thank you to this Committee as well.
Chairperson: I could not hear you; you just went low.
Ms Zulu-Sokoni: My apologies. I said, that is the reason the African Ombudsman and Mediators Association is here at this august hearing. And we would like to thank you for having given us this opportunity to be able to address this matter before this Committee.
Adv Mpofu: Thank you. So by that do you mean that – I do not know how it is done in diplomatic circles – but is there a formal way in which you can pass the message on, through the Chairperson, to South Africa?
Ms Zulu-Sokoni: I am sorry, I do not understand the question.
Adv Mpofu: I was saying, apart from doing it through the Chair and the Committee, as we are doing now, is there a formal way in which you can communicate those areas of noncompliance to South Africa where we are able to engage with the government directly? However, we believe that this opportunity we have been given also allows us to address the government directly and we trust that it will start a process of discussion and engagement as well. Not only here in South Africa, but in other countries as well. If we then go to the next page, 269. Or one of your minimum standards is 3.3 – the process of removal shall be on the basis of a just cause and shall be fair, transparent and regulated by the constitution and preferably involve an independent body. That is one of your minimum standards.
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: Well, as far as fairness is concerned, you and I covered some of the issues, for example, conflict of interest and so on, which clearly undermine the fairness of the process. But I want to talk about another aspect of fairness. If a process in a country could be shown to … let us say where there is a refusal to call essential witnesses, or relevant witnesses or witnesses that are specifically mentioned in the charges, thereby depriving the “accused person” of an opportunity to absolve themselves, would that be fair?
Ms Zulu-Sokoni: Repeat the question, please.
Adv Mpofu: if the process in a particular country involved the refusal to call essential witnesses or relevant witnesses that are specifically mentioned in charges, thereby denying the accused person an opportunity to clear their names, would that be in conformity with standard 2.3?
Ms Zulu-Sokoni: It would not be in conformity with the fundamental principles of natural justice, that is the ultimate tool that we use in an ombudsman’s office. So a person’s right firstly, to be properly represented, secondly, to properly defend themselves should be respected and upheld in any constitutional democracy.
Adv Mpofu: And, well, it goes even further. In a process where an ombudsman is in jeopardy of losing her position, and in that country there is a refusal to even call the complainant, the person who actually started the whole thing to clarify what they had in mind and all the issues that you and I have traversed for the past hours; would that be fair?
Ms Zulu-Sokoni: The complainant in any case is the one who brings the case before any court or any tribunal. That is the gist of the matter. The complainant has to come forward and say, “This is my case.” Otherwise, there is no case.
Adv Mpofu: Thank you. And more importantly for your purposes, if there was a direct refusal to call the complainant, would that be in compliance with the minimum standard 3.3? If there was a direct refusal to call such a complainant in a particular country would that be in compliance with the minimum standard 3.3?
Ms Zulu-Sokoni: No, that would not be in compliance.
Adv Mpofu: Okay, then let us go to 4.2. Minimum standard 4.2 says that the term maladministration should be given as broad an interpretation as possible, covering all public offices, institutions executing public functions and institutions or individuals administering public funds. Now, this is a statement that goes to how wide the powers are and I think in our own country, the case of the EFF in the Nkandla case, also known as EFF v Speaker, goes to show the very wide powers. So am I correct that this is also an expression of the width of the mandate?
Ms Zulu-Sokoni: Yes, definitely. That is so. It is very, very difficult to restrict maladministration. I have often said that the categories of maladministration are never closed because sometimes it is really personal. It is about how a person has been treated because it includes issues like rudeness, discourteousness, you know, and, depending on the type of industry that you are dealing with, the specific institution that you are dealing with, the concept of maladministration may change. So that is why the ombudsman is granted such wide discretion to investigate public service institutions to ensure proper, efficient and effective service delivery to the people.
Adv Mpofu: Now, that is my favourite – the standard in section 6, the one of rudeness, because I think it shows how wide the mandate is. Theoretically, when a public official just does not greet you, when you greet them, you could report them to the Public Protector .
Ms Zulu-Sokoni: That is theoretically correct. However, one of the issues on a more serious note in South Africa is that even the courts have tended to restrict the deliberately wide mandate of the Public Protector. Yesterday, we spoke about the two-year limit issue and how it has been interpreted by our courts as if it were a prescription provision, and we will clarify that that is not what it is supposed to be. But we will just give you another example. In one of the cases that features in this matter, we have a person who was the Deputy President of a country and going to a conference to make him the President, to cut a long story short, and it turns out that he received anything between R10 million and R1 billion from unknown sources. But the court’s interpretation was that even though the person holds those positions, those billions or millions of rand were given to him as a person.
Adv Nazreen Bawa: I am going to object to the characterisation of what Adv Mpofu is implying. He must either say what the case was about, and phrase it in a manner where the court says, “Oh, the money went to ..” and say where the money went. He must tell us what he is talking about.
Adv Mpofu: Okay. I am telling you what the case is about. I am saying the case was about a person who is Deputy President of a country. What part of that do you not understand?
Adv Bawa: If you are referring to the Bosasa CR 17 case, say so.
Adv Mpofu: No, I do not want to say so. I am just giving an example of the situation because the idea is not to discuss a particular case, just to get a concept.
Chairperson: That is fine. Thank you,
Adv Bawa: For purposes of cross examination, Adv Mpofu is saying, “We have a case.” and he puts certain facts to the witness, which in our view are not necessarily correct.
Chairperson: I kind of general agree that at this point, Ad Mpofu is pleading for a general principle. We are not getting into specifics. Hence, I would protect that. I do not find an issue if a name is not mentioned. Can we leave it at that at this point?
Adv Mpofu: Thank you. I am deliberately leaving out the names. And if Ms Bawa finds, when we argue the case, that I have put the question in such a way that it does not elicit what I need, she should be happy, because then she can say that it was just a non-question. The person who holds the position of Deputy President is involved in a process which is intended to elevate him to the Presidency itself and in that process receives hundreds of millions of whatever currency. The Public Protector then does an investigation and finds that there was something wrong with that in terms of the conflict and non-disclosure laws and all that. I am not dealing here with a specific issue, but with how wide the mandate is. So I am not really interested in the merits of that case. I am saying that in such a situation, would it be, in your understanding of the prescripts of both the international and continental groupings, in conformity with the very wide mandate of a Public Protector? Even though we all know that this was done in the context that I have described but, because the money was received by the person as a private person, is it right that the Public Protector should be barred from investigating? Would that in the spirit of the wide mandate of the Public Protector?
Ms Zulu-Sokoni: I am not very familiar with the facts of the case. Okay, and what I would say is that if that person is a public officer and falls within the mandate of the enabling legislation for the ombudsman to operate, then no public officer is exempt, unless he falls outside the jurisdiction, for example, you may not investigate the judiciary or the legislature. If it goes that far, then the ombudsman cannot, but if it is within the mandate, I do not see why they should be blocked from investigating the matter. But I will go further to say, the situation that you have actually referred to, if it was in my jurisdiction, I would pass it on to the anti-corruption commission. So this is what we have been saying about the problem of multiple mandates where the Ombudsman has multiple mandates, and the difference between maladministration and other areas becomes mired.
Adv Mpofu: Yes, that is correct. Incidentally, it is interesting that you should say that without being familiar with the facts as that is exactly what the Public Protector sought to do – to refer it to the anti-corruption bodies. But you have answered my question as far as it relates to the OR Tambo principles. Just out of interest, that happened in a particular division of the courts, but when the tables were turned, and that same person was charged as a person, the court then said that for that issue he should be there as a president. It is better you do not go into that, but that is what we have to deal with. We go to number 7 on the next page: conditions of service. We spoke about that yesterday, exhaustively, so I will jump that. Those were principles in the OR Tambo principles that I wanted to clean up. We have also dealt with rudeness.
Adv Mpofu: Let us then go to the speech of Ms Sokoni on 21 September 2021.
Adv Mayosi: Can you be specific? Which item is it exactly in Bundle H?
Adv Mpofu: Item 12 on page 331. That is a speech that you delivered on 21 September 2021. It is headed the paper presented during a facilitated discussion of Her Excellency Mrs Carolyn Sokoni, Public Representative of the Republic of Zambia. I want to take you through some of the key propositions that we make, which are relevant to the discussions we had yesterday. So I will not dwell much, but we will just highlight those sections. And if you care to comment, I will ask you to refer to paragraph on the next page. The second paragraph is not numbered. That paragraph makes the linear link that you were just making between maladministration and corruption because, as we said, maladministration is such an elastic concept in this field that it starts from such things as not greeting a person and goes up to things like corruption, probably involving hundreds and millions of rands or dollars.
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: Okay. And you make the point in the middle of the paragraph, that maladministration may be termed petty corruption simply because some of the activities, such as discourtesy, to give just one example, have negligible effects on the governmental sources. However, in terms of the law, maladministration is as much an offence as corruption and most of all because it creates obstacles to equal access, services and benefits of these services. I am linking this to the quest in all instruments - and by the way, I wanted to comment on a statement from your affidavit about the need either to move away from the so-called classical model where the public protector’s mandate is confined to maladministration on the one hand, which is what you and I are discussing now, or to define maladministration as widely as possible. Is that generally the trend?
Ms Zulu-Sokoni: Generally, yet most of the countries which have multiple mandates are in the minority, but the trend is that of broadening the definition of maladministration.
Adv Mpofu: And just referring back to where we started with the United Nations, and correct me if I am wrong, that kind of widening the scope of operation of Ombudsman has gone so far that the Office of the Ombudsman, in general terms has now been “welcomed” into the UN Human Rights Institutions phenomenon.
Ms Zulu-Sokoni: Yes. In actual fact, in Europe, most of the Ombudsman offices have the single mandate of investigating human rights.
Adv Mpofu: Let us move on to some of the highlights of your speech. You make the point about conditions of services being similar to those of the judiciary. We discussed that yesterday. So let us jump that. But more importantly, again, to relate it to our situation, you see in the second paragraph: the position of Ombudsman has been equated to that of a high ranking judicial office or a judge with all the accompanying powers of the office, except the power to make binding decisions. The position has also been vested with the conditions of service and remuneration of a judge. And I think we agreed that that would mean then generally that the suspension of a Public Protector should follow the same steps as the suspension of a judge.
Ms Zulu-Sokoni: Yes, exactly.
Adv Mpofu: And it also means that, as we demonstrated yesterday, at least from a constitutional drafter’s point of view, the constitutional protections afforded to a judge are identical to those afforded to the ombudsman. Except, of course, for example, that the judge has security of tenure for life, whereas we have agreed that in the case of Public Protector, it might be limited.
Ms Zulu-Sokoni: Yes, definitely. The judge has security of tenure for life. However, the Public Protector is supposed to be for a term certain, so that the ombudsman could have the same terms and conditions of service as a judge, but upon retirement, something is given to them.
Adv Mpofu: Yes, some elements in this country look at that as if it is just a gift. It is as much misunderstood as the payment of judges for life. There are people who think that is just extravagance and are not able to link it to the issue of independence. And you can confirm, I am sure, as someone who has even been nominated to be a judge, that the reason why judges are paid for life is not for fun but is actually a very serious matter of ensuring the judge’s independence to protect the public.
Ms Zulu-Sokoni: Yes, exactly.
Adv Mpofu: And you then deal with the comparison with the case of Ndene, which we discussed yesterday, where the court, in my respectful submission, wrongly relied on our case of the Minister of Home Affairs v Public Protector, basically to say that the powers are not binding even though your constitution and like ours specifically says that the powers are binding.
Ms Zulu-Sokoni: Yes, that is the reason the Ndene case was so unique. I had to mention that in the Zambian constitution, the Public Protector is imbued with the powers to make binding decisions. However, the Zambian court based its judgment on the South African court judgment where they stated that the binding powers of the remedial action reports of the Public Protector were not absolute. So they based their own judgment on that very judgment. But for me, it was strange because here in South Africa, the Public Protector was imbued with binding powers by the court and that is not stated in the Constitution. So this is the reason I have made that comparative analysis of the two cases.
Adv Mpofu: Maybe in fairness to your court, but you know the case better than me because you were a party to it. I would say that if you compare it with our situation, the issue was the ability to review as opposed to the binding or non-binding nature. Then obviously in your case your courts would be in conformity with ours in that in our situation, irrespective of the binding or non-binding debate. It has always been understood that the decisions are reviewable.
Ms Zulu-Sokoni: I can add that the fact that the institution of the Ombudsman is encouraged only to make recommendations also protects the courts from making conflicted decisions. It protects the ombudsman from being placed in a compromised position, and it also protects the courts from having to lean over backwards to try to protect somebody just because there was some sort of external influence to say that such a decision would not be becoming.
Adv Mpofu: Thank you. And then in your speech, you make quite an interesting and detailed analysis of some of the South African cases that you say are relevant to your topic, but also to what I have called the central thesis of your evidence, which you have just mentioned, about the recommendation versus binding nature. At page 336, you deal with a case that for all intents and purposes was a turning point in South Africa, and from what I understand you are saying, also in Zambia, which is the Economic Freedom Fighters v Speaker of National Assembly, known to us as the Nkandla case. You refer to the Nkandla case?
Ms Zulu-Sokoni: Correct.
Adv Mpofu: Yes, and you observed that the case was a turning point in the manner that I have just described, but in the previous paragraph, just in the last sentence, you make the observation that, because of this, the institution must now budget for litigation costs as a matter of priority. Would you agree that is one of the unintended consequences of having the binding model, that the cost of litigation automatically shot up because obviously people are more likely to challenge decisions that are binding than those that are merely recommendations?
Ms Zulu-Sokoni: That is correct. So I must confess, within the office now, we have actually raised our standards very high because we interrogate each and every piece of evidence thoroughly because we know that when the report comes out, there is a possibility that it might be taken to court. So, it has made us a little bit more cautious and it takes us a little bit longer now to issue a report because we have to do our due diligence and interrogate our cases thoroughly.
Adv Mpofu: And in a way you get what in English is called the sharp end of the stick because your decisions are as binding as those of judges. But judges do not get reviewed, and you do. And as we established yesterday, judges can have all sorts of scathing remarks made about them in a higher court, but nobody is going to say they must come here and be impeached.
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: Then you refer to another case that is directly relevant to this inquiry, which is the Public Protector v South African Reserve Bank, otherwise known as the CIEX case. You summarised the facts of that case and you point out that that report was issued after the Nkandla judgment. That is quite important as there was a hullabaloo because of the binding nature of the decision. You quote from the minority judgment of Chief Justice Mogoeng and the sharp distinction between the two judgments is that Chief Justice Mogoeng was not necessarily uncritical of the some of the things the Public Protector was accused of, but his point was that to err is human - those are the words that he actually uses - and therefore, that should not be a basis for personal costs. You indicated yesterday that you associated yourself with the approach taken in the minority assessment of the Chief Justice.
Ms Zulu-Sokoni: As I stated before, being an ombudsman, I would think that the ombudsperson must be given the necessary protection to do the sort of sensitive work that they do, such as investigating the executive team. So, having personal costs being occasioned by asking the ombudsperson to pay the costs of a respondent institution means that a decision has gone through the backdoor, and the institution has managed to punish the ombudsperson for making a finding against them. It should be directed at the institution, not at the person. Because we are all human and we can make mistakes in our jobs. For example, if a doctor is operating on somebody and that person dies on the operating table, the relatives take the hospital to court. No court says the doctor has to pay in his personal capacity. How many professionals would be able to do their job if they had to pay personally?
Adv Mpofu: Thank you. I think Justice Mogoeng makes that point that it has a chilling effect that, quite frankly, and these are my words, nobody would ever want to be a Public Protector because such costs could bankrupt the person. If you accept that the people that you investigate are normally the most powerful in society, whether they are Members of the Executive, who sometimes use state resources to fight, or they might be big banks or people with deep pockets, and therefore it would be likely to bankrupt a normal human being if you have to pay costs for those types of institutions or people. The gist of what you are saying is in paragraph 46 of that judgment. He says that all that was for a good reason. He said that was why personal costs against public officials was a critical rarity. Public office bearers had to be allowed the space to be human. I think that is one of the most profound statements which, if not neglected, would have made sure that we were not sitting here today: public office bearers must be allowed the space to be human. And to err is human. It ought to take much more than ignorance or limited competence in one's area of responsibility, poor judgment or incidental but harmless unfairness to others, to institute personal costs against an office bearer litigating in a representative capacity. Does that capture more or less what you are saying about the inequities of this practice?
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: We will have debates, no doubt, between us and the evidence leaders and others who are inclined to towards recommendations for constitutional amendments and so on. I am just raising these issues now in the narrow space of independence, autonomy, unfairness and cruel punishment towards a Public Protector. Now, if I may move to the other case that we touched on, which you referred to in the context of the wide mandate and whether the Public Protector should have access to tax records and so on. Do you remember that case we spoke about, that is Public Protector v Commissioner for South African Revenue Service?
Ms Zulu-Sokoni: Yes, I do.
Adv Mpofu: I want to deal with that case, not what we discussed yesterday, but a separate issue related to what we are discussing now. Bundle C number 17.
Adv Bawa: For the record, Adv Mpofu talked about this case yesterday at the level of generalities in respect of the subpoena. To my recollection, he did not refer specifically to the case, or the witness did not refer specifically to the case. It was more for the issue of whether a subpoena should be issued by the Public Protector for personal information and if she should be entitled to such information. I just want to say that the witness did not testify specifically to this case yesterday.
Adv Mpofu: No, that is not true. The witness spoke specifically about this case. She even said that she was surprised, and even pointed to something in the case that I had forgotten myself, as in the case, the court had said that the Public Protector had other alternative ways, including approaching Mr Zuma for the documents and she showed some pictures. Nobody could make that remark if they were not talking about this case. As I say, I knew the case from the Constitutional Court, but I had forgotten that aspect of it. So she obviously was talking about this case.
Adv Bawa: I am happy to accept I am wrong. My apologies. I will deal with this with the witness.
Adv Mpofu: I do not want to waste time on this, but just to illustrate the point the witness spoke about. You will find it in paragraph four where the court says the Public Protector is entitled to subpoena taxpayer information. The basis for this opinion is that the Public Protector issued a second subpoena still requiring information from former President Zuma’s taxpayer information. That is what we discussed yesterday, but that is not what I want to discuss today. I want to take you to the issue related to what we have just discussed around the Reserve Bank. Please give me an extra 10 minutes because I need to read some of these. This is at the heart of what we are doing and something that actually is a pleasant surprise, because when I did this during the case, I was told that I was skating on thin ice in respect of the level to which we were criticizing the judiciary. But fortunately, we did so and then the judgment vindicated us. And this relates to one of the 14 issues in the Venice Guidelines, which is where the judiciary and the legislature and the executive are supposed to play a role of checks and balances, rather than ganging up against the Public Protector. I think we all agreed on that yesterday.
Adv Mpofu: We put forward evidence in the Constitutional Court to show that our courts had actually gone overboard in mounting the Public Protector with costs, and although the court did not use the word fashionable, which is what I used in my argument there, it basically vindicated that stance. I will read from paragraph 42. I think that everyone talks about EFF, Nkandla and the Reserve Bank, but I think this is the judgment that really defines what a country should not do. This is what Justice Mahlangu said and, incidentally, he is the one who had questioned me in court. I was very happy to say that, between that time and writing the judgment, he probably looked at the evidence more carefully. He says that there appears to be a developing trend of seeking personal costs in most, if not all, matters involving the Public Protector. In other words, litigants were catching on to this and basically wanted to cash in. A total of four, including this one, have reached us. And in three, the High Court granted personal costs against the Public Protector. What made one of those cases stand out was that a personal costs order was granted based on “the usual rule”. That is what I meant by it being fashionable – that costs follow the result with no consideration whatsoever to special circumstances that justify that order. The next passage is more important for a different reason - this whole issue of so-called scathing remarks. The court in that case had made probably the most scathing remarks and found adjectives that I did not even know existed to justify the personal costs order. The Constitutional Court said that in the matter instant, in this conclusion, the court has carefully selected and used epithets, and particular nouns that are suited to award of personal costs orders, but there is not a scintilla of evidence to support those epithets, and particular nouns and, therefore, the conclusions simply cannot stand up to scrutiny. Then he says, ”Out of the four applications that have landed here, it is only in one that this Court has sanctioned the personal costs order. Of course, that does not mean that litigants who believe on cogent grounds that they are entitled to such personal protection must not push for such awards, and that if such costs are warranted, the courts should not grant them.” But he says that it does mean that courts must be wary not to fall into the trap of thinking that the Public Protector is fair game for automatic personal costs awards.
Adv Mpofu: Now just want to pause there. So this was a serious statement made by the Constitutional Court of when you say automatically, you literally mean a knee jerk reaction that if it is the Public Protector, therefore, it means personal costs, whether inadvertently or otherwise. It is important because in other words, this could be an innocent thing, but it could also be deliberate. I do not think it can be more serious than that. Mahlangu continued: “Whether inadvertently or otherwise, the high court judgments in the EFF and Gordhan matters, and that in the instant matter, are instances where the High Court fell into that trap of knee jerk or automatic cost orders.” And then he says that personal costs orders may have a chilling effect on the exercise of the Public Protector’s powers, including litigating where necessary. I think that is the point you are making about a Public Protector not wanting to investigate because they think if they are going to be in for personal costs, then they might as well not even do the investigation. Correct?
Ms Zulu-Sokoni: Correct and it also erodes the respect for the office because this Public Protector is going to leave that court having personal costs awarded against them, and then they have to go back and call other respondent institutions to appear before them, but there is just no respect for the office anymore.
Adv Mpofu: The judge says the Office specially created together with other Chapter Nine institutions is an important cog in our constitutionalism as it and the others were created, “to strengthen constitutional democracy. Axiomatically, the Public Protector’s Office is more important than any other.” In other words, your personal hatred for a particular incumbent should not destroy the entire institution forever. Amen. Then he says, “The impact of certain types of conduct that shake its operations to its foundations may outlive the term of office of a number of incumbents. Needless to say, as the judiciary, we must not be guilty of contributing to the weakening of that Office.” The point you made yesterday that sometimes the judiciary itself becomes part of the problem or part of the forces that threaten the existence of the Office.
Ms Zulu-Sokoni: Yes, exactly. It is even mentioned in the principles that the judiciary could be one of the institutions.
Adv Mpofu: And this is where I said you are using the words of Justice Mahlangu when he said, “You weaken it, you weaken our constitutional democracy, its potency, its attractiveness to those it must serve. Its effectiveness to deliver on the constitutional mandate must be preserved for posterity.” And I just want to refer this back to when she talks about effectiveness. Remember that the full name of the OR Tambo Declaration is: The OR Tambo Declaration on the minimum standards for an effective ombudsman institution, and cooperation with African Union on strengthening good governance. So this issue of effectiveness that the learned judge was talking about also captures what we call the minimum standards.
Ms Zulu-Sokoni: Yes, it does.
Adv Mpofu: And here is the punch line. He says: “I voice these words of caution, which I hope everyone will listen to because of the disturbing frequency and regularity of applications for, and awards of, personal cost orders are called for against the Public Protector with disturbing frequency. What is particularly disturbing is that it is clear that the applications and awards are not always justified. That much is apparent from the facts that two out of the three personal costs awards that have come before us, including this one, have been set aside. Crucially, those two typify the worst examples of personal costs and in the fourth matter where there was no personal cost order by the High Court, but where there was an insistence that this Court should make such an award, we declined the invitation.”
Ms Zulu-Sokoni: So there was an insistence by the respondent institution?
Adv Mpofu: Yes. There were four cases basically, only one in the Reserve Bank case, I think. Then he says in two of them, they rejected those personal cost orders because he says that they were the worst form of personal orders of the automatic, knee jerk type. In the fourth one, he says it was not sought in the High Court but in the Concourt, there was an insistence by the respondent. And as he puts it politely, the Constitutional Court declined that invitation.
Ms Zulu-Sokoni: So exactly. That the respondent institution tries to use the courts to punish the Public Protector, goes against all our principles.
Adv Mpofu: Well, that is the conundrum, is it not? That is the central conundrum of this particular inquiry, that this element is the intended extension of those affected by the Public Protector, because it might not be clear to others, but the chain reaction is like this: The Public Protector investigates, let us say, a multi-billionaire called Mr.Nqola and that multi-billionaire is then going to use his deep pockets to fight the Public Protector in court. Right? Because “how dare she want to investigate me?”
Adv Mpofu: The court, if it falls into the trap that Judge Mahlangu is talking about, will automatically respond with a knee-jerk cost order for her to be bankrupted and pay the personal costs. Right? In doing so, that court has to justify that, and then when it comes to what she calls unjustified nouns and epithets to describe her conduct because it has to justify why it must give the costs order. It is going to say she is the worst person who has ever lived, and therefore she must be mounted with the costs. They issue a judgment and then Parliament says – no, not Parliament – Ms Mazzone says this is a scathing judgment and takes it to Parliament. Anybody who does not like the Public Protector says, “Let us chop off her head!” and they take that judgment because “it is binding” and then it becomes the basis for impeachment, which is exactly what is happening. That is why I said to you that 90% of the charges are based on these utterances of the courts and the cost orders. You testified yesterday, very clearly and unambiguously, that Parliament should not allow itself to be the whip, as it were, when the arm and the hand actually belong to all sorts of other people, and Parliament is just taking a judgment and imposing it on a process for an impeachment. Can you please just talk to us as South Africans, or this Parliament, about the dangers inherent in this and maybe talk to the Continent, because it is, as you said, things that should not be copied by other people, taking into account the quotations that I have given you from the Constitutional Court.
Ms Zulu-Sokoni: I think maybe just to put it very simply, the legislature and the judiciary should not be used as enforcement mechanisms on behalf of the Executive. The judgments that have been issued are mostly between the Public Protector and the Executive and once these judgments come out against the Public Protector, if they are then taken up by the legislature as a justification for any disciplinary procedure against the Ombudsman, it means that the Executive has managed to get back at the ombudsman through the judiciary, but the judiciary are allowed to review the reports of the Ombudsman and should stop at that by either reversing or upholding the judgment. The Public Protector should then look at it and say, “Okay, I have to change my work ethic, my work style, and the way I report and the way I investigate”. But then if the judiciary punishes the Ombudsman by issuing personal cost awards, and those judgments are lifted by the legislature… The respondents and the complainants are allowed to complain if the officer of the Ombudsman is not performing optimally, and they can use the courts of law but for the three arms of government to also become complainants in the process where the Ombudsman has not mis-conducted herself in any way, I think it is really the institution of the Ombudsman that is under threat. And I would want a healthy discussion to be held around this matter by all three branches of government. They have to understand what they are doing to this institution so that this sort of issue never arises again. It just takes us back so far, as I said.
Adv Mpofu: As I said today, at least some of the people who are taking us back like that, are probably not doing so intentionally but some of them might be. There are many ways in which some seek to be taken back in this country. But finally, I want to wrap up what we have discussed. The witness prepared a slide presentation on page 272 and at some stage, I thought we would follow it, but I decided to follow the witness statement instead. It is available to the Members. The witness says that ombudsman institutions have become a crucial component of the contemporary model of good governance. They are crucial in protecting and promoting administrative rights and giving people a way to file complaints free of charge when such rights are allegedly violated. So that is the broad mandate. The emphasis there is on the fact that the services are free, unlike the courts, which are not accessible to the poor. On page 278, there is a summary of what you call the comparison between the classical model which is to be found in places like Zambia and Malawi, and the hybrid model that you find in places like South Africa, Uganda, Nigeria, and Zimbabwe. Namibia also has a dual mandate. Page 279 shows the typical conundrum of the office: it is in a difficult situation because it needs to use the government’s resources while at the same time checking on the same government. Nevertheless, you say, its independence from other governmental branches is likely the most crucial condition for a successful Ombudsman's office. And that would also entail issues such as the institutional immunity and autonomy.
Ms Zulu-Sokoni: Exactly.
Adv Mpofu: So that means this process really suffers two major flaws, to put it bluntly – this issue of taking judgments and using them, which you just spoke about, and also the other issue of breaching the protocols on institutional autonomy.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Page 281, just for the sake of emphasis, highlights the autonomy and independence of the ombudsman's office.
Ms Zulu-Sokoni: Correct.
Adv Mpofu: Then you go to the instruments and we have dealt with most of them. On the next slide, you speak of the quest to take this to the AU and all that, and the role of the South African government and the establishment of such institutions.
Adv Mpofu: The presentation deals with security of tenure and natural justice. On page 287, you deal with the Venice Principles, and you highlight the immunity from legal process in respect of activities carried out in the ombudsman’s official capacity. Do you want to add anything to that?
Ms Zulu-Sokoni: Really, I think I should state here that the option to have a matter taken to court against the ombudsman should relate only to the findings and recommendation of the Ombudsman. That is also what the court should address itself and once the judgment comes out, it is a tool for the ombudsman to use to improve the performance of the Office.
Adv Mpofu: Next is the Paris Principles and the UN which we have covered. Your last slide covers what I really would like us to take from this discussion - the question that you posed is who is the ombudsman’s ombudsman. In other words, who shall protect the Public Protector, if Parliament, the judiciary and the executive, in the way that we have now described, become a chain of punishment? And by the way, you refer to something that you called a party whip. Political parties are also able to abuse the Public Protector, correct?
Ms Zulu-Sokoni: Yes, according to that particular example.
Adv Mpofu: And here we have political parties, even one that had a vendetta against the Public Protector even before she started work. But you talk specifically about the ruling party, which obviously has a sufficient majority to do as it likes in the parliamentary system. So if we have those, all those weaknesses, and the continuum of punishment, then who is going to protect the Public Protector? And I think that is the profound question on which you end this. So, if you go through the bullet points, you said the appointment and accountability to the legislature suggests the protection of the office. So you agree that the real ombudsman of the Ombudsman should be this Parliament?
Ms Zulu-Sokoni: Yes. The investigation mandate covers the executive. Once the investigations have been carried out, special reports are submitted to Parliament. However, even in its operation, if the Office of the Ombudsman has difficulties, they should be able, when they are tabling their reports or the annual report, to bring any operational problems, administrative problems, and even legislative issues to the attention of Parliament, so that there is no issue of compromise. However, practically speaking, because it is the executive that funds the office of the Ombudsman, they often have to have daily interactions with the executive regarding the running of the office, but if there are any problems, it should be directed to the legislature to act as an arbiter to speak for the office.
Adv Mpofu: We will go back to our example of what I call “the continuum of punishment”. In the cases that feature here, there are Members of the Executive who appear very prominently, such as Mr Gordhan, in two cases in particular: one is the so-called Rogue Unit and other one is about the pension of Mr Pillay. And then there is the infamous CR17 matter which is one of the charges that I was talking to you about which is the alleged bribery to hold office and then there is a host of state-owned enterprise entities. So the cases really represent what you are saying about the executive taking on the Public Protector, and now it wants this Parliament to be its extension, so to speak, and there are dangers in that.
Cross-examination by evidence leaders
Chairperson: Welcome back. I hope you had a good quick break. We are going to invite the evidence leaders to do cross-examination shortly, and Members will also come today. So, we might spill over a few minutes or an hour, but we will conclude with Ms Sokoni. I do not want you to be here until tomorrow, although I know you enjoy Cape Town.
Ms Zulu-Sokoni: I am sure we will finish today.
Adv Mpofu: I do not want to be pedantic but just to remind for the record: evidence leaders are not allowed to cross examine, but they can put questions.
Chairperson: We are not going to discuss that. Over to you, Adv Bawa.
Adv Bawa: Ms Sokoni today, I just want to understand your evidence. You are the Public Protector of Zambia. Can you give a perspective of your position? Or can I assume it is from the perspective of a public protector?
Ms Zulu-Sokoni: I speak from the perspective of a public protector, and also from the perspective of the international standards that have been set in place for the office of the ombudsman.
Adv Bawa: And you use those international standards as the benchmark by which you give you evidence, as I understand it.
Ms Zulu-Sokoni: Yes.
Adv Bawa: The organisation which you represent has issued a statement and come out in support of the South African Public Protector, correct?
Ms Zulu-Sokoni : The African Ombudsman and Mediators Association has not issued a statement according to my knowledge, but I believe the International Ombudsman Institute must have written a statement in support of the process that is on now. I am not very sure, but I suspect the International Ombudsman Institute.
Adv Bawa: I was not going to put the statement up because I did not think it necessary, but I think a statement was issued in support of the Public Protector in June of last year.
Ms Zulu-Sokoni: Not on behalf of the African Ombudsman and Mediators Association, but there are two organizations. There is the International Ombudsman Institute (IOI), and the African Ombudsman and Mediators Association (AOMA) and I believe, a joint statement was issued with the President of the International Ombudsman Institute. That is the one that I am aware of in her capacity as Africa director for IOI.
Adv Bawa: Okay, I think during the lunch adjournment, I will provide you with that statement. I do not want to delay because I do not think much turns on it. The statement, which is attached to your affidavit, is a statement by AOMA.
Ms Zulu-Sokoni: Yes, this is a statement that we submitted in support of these proceedings.
Adv Bawa: And that is attached to an affidavit which you deposed? Did you prepare the statement?
Ms Zulu-Sokoni: Yes. This statement was prepared by me.
Adv Bawa: And was based on your knowledge of the legal principles contained in the statement?
Ms Zulu-Sokoni: Yes, right.
Adv Bawa: Now, there was some confusion about whether you have been appointed or not been appointed as a judge. The Committee, last year, was told that you had been appointed as a judge, and that it was just a matter of the i's being dotted and the t's being crossed before you would be taking up such office. Can you perhaps clarify this?
Ms Zulu-Sokoni: Thank you very much. Yes, I was appointed to the Office of Judge and I was awaiting ratification. However, as you will know, the Office of Ombudsman is supposed to have security of tenure, or it is supposed to be for a certain term. I brought this to the attention of the authorities that there was a conflict in that there is a certain term for the office of ombudsman, and they looked at the issue and the laws, and then they agreed with me that I was supposed to actually finish my term of office as ombudsman before I could be considered for any other appointment.
Adv Bawa: Okay, so there is a Judicial Service Commission process in Zambia, am I correct?
Ms Zulu-Sokoni: Yes, the Judicial Service Commission recommended my appointment and then the President appointed on the recommendation of the Judicial Service Commission, and then the matter was sent to Parliament for ratification.
Adv Bawa: And so it was not ratified?
Ms Zulu-Sokoni: Before the ratification process could be completed, the matter was brought to the attention of the authorities.
Adv Bawa: Now can you explain to the Committee what are you an expert on?
Ms Zulu-Sokoni: I have come to address this Committee on the aspects of ombudsmanship. I have been an ombudsman for 18 years. This is the 19th year actually.
Adv Bawa: And in those 19 years, how many instances or involvements have you had in the removals of public protectors, via a constitutional and legislative process, such as this one?
Ms Zulu-Sokoni: I have had occasion to look at aspects of ombudsman offices under threat as a AOMA Executive Committee member, and also as the IOI Director, but not to the extent of the South African process where there is an actual involvement of an international organization. But we have considered such matters at AOMA or IOI board level.
Adv Bawa: Can we just limit this to removal proceedings of this nature. We accept that you have been an ombudsman for many years but let us distinguish between what is under threat and the removal process. How many such removal processes have you been involved with?
Ms Zulu-Sokoni: As I said before, removal processes, no. But where ombudsman offices are under threat, yes. I am just distinguishing.
Adv Bawa: Adv Mpofu put the proposition to Mr Hassan Ebrahim who is an experienced South African constitutional lawyer with a South African law degree and experience of some 20 to 25 years in the Constitution and constitution-making, that he was not an expert in the removal proceedings of the Public Protector. So Ombudsperson, would you regard yourself to be an expert in removal proceedings of public protectors?
Ms Zulu-Sokoni: I would consider myself as an expert in ombudsmanship and think ombudsmanship would include any other issues that are incidental. So it is just an issue of applying the principles to any situation that affects an Ombudsman.
Adv Bawa: So Mr Ebrahim told the Committee that it was a relatively new area and that there had not been such formal removal proceedings within a constitutional and legislative framework and that one would not find jurisprudence in respect of that. Would you agree with that?
Ms Zulu-Sokoni: I would not be able to say yes or no because not all ombudspersons all over the world have served their full terms: some are removed, some even forcefully removed from office. However, I could not, off the cuff, give you any cases regarding the removal of ombudspersons.
Adv Bawa: You see, I think we were in agreement that this is a novel process and so we searched high and low for purposes of assisting the Committee to see if there was a precedent for how we could be guided by a similar process. The closest we came was a process that took place in the Philippines that got aborted before it was completed. So my question to you is: in the removal of public protectors in the world that you would or your international organization would be aware of, are you aware of case law or an impeachment process through a parliament of a public protector?
Ms Zulu-Sokoni: Maybe let me put it like this. I think that if the principles of ombudsmanship are being followed and are strictly applied, it would not really be a similar process found anywhere unless it is a situation where the Ombudsman has, like I said, grossly mis-conducted themselves. For you to appoint an ombudsperson, you have to have gone through a very careful vetting process so, I would not expect there to be several cases of impeachment of an ombudsperson considering the type of office that it is.
Adv Bawa : Ms Sokoni, I accept that if you play by the rules, you should not get impeached. But the converse is also true; if you do not play by the rules, you may be subject to impeachment as a general proposition. Would you agree with that?
Ms Zulu-Sokoni: Yes, that is a general proposition.
Adv Bawa: The level of the question I am asking you is: are you aware of any public protector, anywhere in the world, where the legislature is the oversight body of a public protectors has made a call that you are going to face impeachment proceedings because – colloquially – one has not played by the rules, and whichever national standard one had to meet as a public protector, one did not eat meet? Are you aware of any process of that nature that has occurred?
Ms Zulu-Sokoni: To the level of the process that is going on here in South Africa? No.
Adv Bawa: So for the level of the process going on in South Africa, there would not be an expert on this process anyway, because you are not even aware of such process having occurred anywhere else. We will not talk about levels of generality of streets, or levels of generality of the standards by which ombuds people are protected, we are talking about the actual impeachment process.
Ms Zulu-Sokoni: I would say that I am not an expert in the South African law. I am not an expert in South African constitutional law. But I can speak knowledgeably on matters of ombudsmanship. So the process that is going on here, South Africa, is unique because of the way the Constitution has been crafted, and the way the laws have been put together. So I would not say I am an expert on the process that is going on here in South Africa; I can only speak to the general principles of ombudsmanship.
Adv Bawa: Thank you. I fully accept this, and you are a trained lawyer, and you can read a case and you can read legislation and we accept that you would be able to look at the law and be able to explain it and read the case and understand the judgment. Yes. I am just wanting to make it clear that I am not questioning that for any moment. I am not trying to say you cannot do that - you can look at South African laws and cases, and you can form an opinion on them, even though you are not an expert on South African law. Would you agree with me?
Ms Zulu-Sokoni: Well, yes, but I would not be able to give, for example, the sort of evidence at the level that Mr Ebrahim gave because he has studied South African constitutional law, and he's able to give his opinion on the Constitution of South Africa and the constitutional processes of South Africa. So I do not think we can be equated really.
Adv Bawa: I noticed that when you answered some of Adv Mpofu’s questions, you prefaced them by saying “in a classical system”. Your Zambian experience is in a classical system, correct?
Ms Zulu-Sokoni: Before it was not a classical ombudsman system, because we were an executive ombudsman, answerable to the executive. We only became a classical ombudsman system from 2016.
Adv Bawa: So let us accept that South Africa is not a classical ombudsman because it is not answerable to the executive; it is answerable to the legislature, correct? Then the post 2016 Zambian experience is a classical one while the South African system is a hybrid one.
Ms Zulu-Sokoni: It is a hybrid one because it has a double mandate.
Adv Bawa: You were you integrally involved in the Zambian changes from an executive to a legislative process that occurred in 2016.
Ms Zulu-Sokoni: Yes, I was.
Adv Bawa: Can I maybe ask you this question: you are not an expert in South African constitutional law and you are not an expert in the application of South African law. As I understand it, you testified that your reasons for coming to testify are about protecting an institution in South Africa that cannot be allowed to go backwards. It is an institution which is informed by the Constitution and provisions of the Public Protector Act, which is almost an example for other countries. Would that be a fair summation of the reason you came to testify?
Ms Zulu-Sokoni: Yes, I said the reason I came to testify here is because after 18 years as Ombudsman, the institution of the Ombudsman in Africa has made great strides and for me, it was important that I come here as well and try to contribute to ensure that the position of the Ombudsman continues to make progressive strides.
Adv Bawa: Indeed, and this was done pursuant to a letter that was addressed to the organization by the Public Protector’s attorneys, which is on page 214. It was addressed to the Secretary-General Of AOMA and the African Regional President of IOI. You receive the letter on 23 August, and the organization's assistance was sought. I quote from paragraph two: “You might be aware of the fact that the process underway is the first of its kind and unique in the sense that there is no precedence thereof. As a result, it is of paramount importance that the public, as well as the Committee tasked with this function, must fully understand the role played by the Office of the Ombudsman within a constitutional democracy. And that is the purpose for which you have come to give evidence: to assist the Committee in understanding the role played by the Office of the Ombudsman in a constitutional democracy.
Ms Zulu-Sokoni: Yes.
Adv Bawa: And in the letter, on page 213, you were nominated by the organization to make a presentation before the parliamentary inquiry as described, and that is the presentation that Adv Mpofu took you to at the end of your evidence?
Ms Zulu-Sokoni: Yes, that is correct.
Adv Bawa: And you prepared that presentation?
Ms Zulu-Sokoni: That is correct.
Adv Bawa: And did you say this followed your observations of the inquiry of the proceedings from the 24th to 31st of July on behalf of AOMA. Can you tell us how AOMA came to be in the proceedings on the 24th? I am not sure if you were here all six days, as I cannot remember. But the letter says that you were here from the 24th to 31st.
Ms Zulu-Sokoni: Repeat the question, please.
Adv Bawa: How did it come about that you came to be an observer to the parliamentary process from 24 to 31July?
Ms Zulu-Sokoni: There was an Executive Committee meeting of AOMA where it was decided that an observer team should be sent to first observe.
Adv Bawa: And what was the purpose of that? The purpose of the observation that you were coming to observe.
Ms Zulu-Sokoni: I believe we had received a letter from the Public Protector. I am not very sure - the Secretary-General for AOMA would be able to answer that question - but I think there was there must have been a letter received from the South African Public Protector requesting our intervention. And I think that was the reason the matter came up before the Executive Committee of the African Ombudsman and Mediators Association.
Adv Bawa: And is the South African Public Protector part of that executive?
Ms Zulu-Sokoni: She is part of that executive, but I believe she was not at that particular meeting.
Adv Bawa: And what was the nature of this intervention that was sought?
Ms Zulu-Sokoni: She did not ask for a specific intervention. She just wrote about the process and she was unhappy about it. She sought the intervention of AOMA. I think that was following her request to the IOI, but I am not really sure.
Adv Bawa: In the course of your evidence, you testified that there are standards the Public Protector should adhere to and natural justice and procedural fairness are included in those standards.
Ms Zulu-Sokoni: Yes. Both of those are principles that guide and protect the office. So whenever you are dealing with a complaint, the complainant comes in for you find out what the complaint is, whether the principles of natural justice were applied. Were they given an opportunity to present their case, and then, when we go and investigate with the respondents institution, that is the guidance that we use. Even internally, when we are dealing with our members of staff, we always try to ensure that we give everybody a fair hearing because we should be the example par excellence. We should ensure that we are leading all other institutions by example.
Adv Bawa: And maybe if I could paraphrase what I think you were saying was that the officeholder of the Public Protector must exhibit the highest tenants of integrity, professionalism, transparency, and accountability to the public interest, the cause of justice, the Constitution, the rule of law and democratic principles. Would you agree with that?
Ms Zulu-Sokoni: That is correct.
Adv Bawa: They must also assist with the maintenance of law in the country…[connectivity breaks]
Chairperson: We can resume as we are now connected. Members on the virtual platform can hear us. Adv Bawa.
Adv Bawa: Ms Sokoni, I am not sure how much is on the record before we were interrupted, so I am just going to go a few propositions back. I put to you that there were certain standards that the Public Protector should adhere to and that those were the standards, just broadly speaking, of natural justice, and procedural fairness, that the Public Protector must act in a manner that shows she is independent so that people can perceive that she is independent, that she must take responsibility for every report issued, and that she must comply with court rules and court orders, and that she has a special responsibility, to tell the truth to the courts, and to file affidavits truthfully. I think that was as far as we got. And you agreed with me that those were characteristics or standards that you are proposing for the Public Protector?
Ms Zulu-Sokoni: That is correct.
Adv Bawa: If I continue with this list, would you agree that one would expect that there would be honesty in the reports issued from the Public Protector about that evidence being referred to in the compilation of those reports? If there is a list in the report, it would be complete, right? Do you agree with us?
Ms Zulu-Sokoni: Yes.
Adv Bawa: And would you agree that the reports would reflect an understanding of the law?
Ms Zulu-Sokoni: Yes, that is correct.
Adv Bawa: As I understand you, you draw the analogy that the Public Protector should be akin to the judge. So would you say that a Public Protector should also have the legal acumen of a judge?
Ms Zulu-Sokoni: Yes. I did state that that is why it is necessary that the vetting process for the Public Protector and ombudsman should be of such a high standard that there will be no need to cast any doubt that there would be a certain level of professionalism, the required level of professionalism, in the reporting standards.
Adv Bawa: And you would agree that there must not be anything that the Public Protector does, that a member of the public who would want to access the Public Protectors Office, would believe that there is any collusion or improper behaviour between the Public Protector and a Member of the Executive. Do you agree with that?
Ms Zulu-Sokoni: That is correct.
Adv Bawa: Now, would you also agree that and I am putting this hypothetically to you, if there is an abuse of power on the part of the Public Protector, a breach of principles of legality, acts of unconstitutionality or a breach of any of the principles that I put forward to you, that that would attract judicial scrutiny. A litigant would go to court to complain about what the Public Protector does, and a court would, if it finds that is correct, it would rule against the Public Protector.
Ms Zulu-Sokoni: That is correct.
Adv Bawa: I am going to try to make it easier and quicker if we can, in some ways, go to the statements that you have you. You set out the background in your statements, which I indicated to my learned colleague, that we did not take issue with, except that I did find it interesting that you say that the concept emanated from the Turks. That seems to be another innovation that has been attributed to the Europeans but originated somewhere else. Would you agree?
Ms Zulu-Sokoni: Would you repeat the question?
Adv Bawa: The concept of an ombudsman, the notion you indicated that originated from the Turks.
Ms Zulu-Sokoni: Yes, it originated from Turkey.
Adv Bawa: And even from its inception, it was not a free pass to any ombudsman. They had to comply with the laws of the land. Would you agree?
Ms Zulu-Sokoni: Yes.
Adv Bawa: That does not matter whether it is a common law system or it is a civil law system?
Ms Zulu-Sokoni: Yes, the ombudsman is a creature of the law. It is a creation of the law. It is a constitutional institution.
Adv Bawa: And so when the Parliament and its Members decide to apply the law, then, like everybody else in the country, the Public Protector must comply as well.
Ms Zulu-Sokoni: Yes, the Public Protector must comply with the law, but also the institutions that are trying to implement the law, and the provisions of the law, must also comply with the law and with the standards.
Adv Bawa: I raise this with you because, in the first instance, the people in South Africa must comply with the laws of South Africa. And so even if you come and give evidence to this inquiry about what you prefer to be a better or fairer system – if that is not a reflection of what bona fide laws in South Africa allow for, then it is the bona fide laws in South Africa that would prevail. Would you agree?
Ms Zulu-Sokoni: Yes, I would agree. The evidence that I am giving is merely advisory and may be of persuasive value.
Adv Bawa: I just want to take you to some of the basic provisions that deal with the role of the Public Protector, and specifically the removal and the criteria of the Public Protector. And I am going to draw a comparison between South Africa and Zambia because I think that there is a blurring of the lines between your evidence and our understanding. I want for the sake of the Committee to be sure that we are not leading the Committee up the garden path.
Ms Zulu-Sokoni: Yes.
Adv Bawa: If we go to section 194 of the Constitution. Number one, the heading is "Removal from Office”. It refers to the removal of an individual from various Chapter Nine offices. The Public Protector, the Auditor-General, or any member of a commission established by the chapter. Do you see that?
Ms Zulu-Sokoni: Correct.
Adv Bawa: It does not deal with the removal of the institution itself so it is not harmful to the institution of a Public Protector. It deals with the incumbent in the Public Protector’s Office. Do you agree with that?
Ms Zulu-Sokoni: Yes.
Adv Bawa: At a hypothetical level, and I am not suggesting that you have to get engaged with the evidence in a way. If a conclusion is reached that an incumbent must be removed from the Office of the Public Protector because the criteria for removal have been met, that does not automatically follow that that is harmful to the institution of the Public Protector. Can you comment on that?
Ms Zulu-Sokoni: Because, of course, the Office of the Ombudsman is very unique in that it investigates the executive. If the removal of the officer is not carried out, according to the legal provisions or according to the laid down standards, it is likely to harm the integrity of the institution of the Ombudsman in such a jurisdiction.
Adv Bawa: So my question was if it meets those criteria, then you cannot draw the conclusion that it is necessarily harmful to the institution. Let me give you an example of the Zambian Public Protector; the constitution provides four grounds on which the Public Protector can be removed: mental or physical disability that renders him incapable of performing judicial - but let us read into it the public protector - functions; incompetence; gross misconduct and bankruptcy. Let us assume bankruptcy is the most objectively determinable one and if hypothetically a public protector finds him or herself in such a situation, then there is an obligation to remove that public protector from office.
Ms Zulu-Sokoni: Yes.
Adv Bawa: So if somebody approaches parliament and claims any one of the four criteria, there is an obligation on the legislature to commence a process. Would you agree with that?
Ms Zulu-Sokoni: That is correct.
Adv Bawa: Now we know that both the South African and the Zambian Constitution make provision for the removal of the Public Protector and it also makes provision for the suspension of a Public Protector by the President. Are you familiar with that? I think it is section 144(3) of the Zambian Constitution, which allows for the suspension of the Public Protector.
Ms Zulu-Sokoni: Yes, the Public Protector may be removed from office or investigations or disciplinary procedures can be commenced against that office through the Judicial Complaints Commission (JCC).
Adv Bawa: I am coming to the Judicial Commission in a moment. Let me ask you this: when the Public Protector is removed from office, does that office continue to exist? Does it continue to function?
Ms Zulu-Sokoni: Yes, it continues to function.
Adv Bawa: So the removal of a Public Protector on a suspension is not necessarily detrimental to the functioning of the office. Would you agree with that?
Ms Zulu-Sokoni: Yes. On just cause, it is not detrimental to the office.
Adv Bawa: Now the Zambian Constitution says the Public Protector can be removed in accordance with the same procedures that apply to a judge.
Ms Zulu-Sokoni: Yes.
Adv Bawa: And that procedure is set out in the Zambian Constitution. I am going to paraphrase it, and then if I have it wrong, please correct me. There is a complaint to the Judicial Complaints Commission that initiates the removal process by one of those four grounds referred to. Correct?
Ms Zulu-Sokoni: Yes.
Adv Bawa: This Judicial Complaints Commission must decide whether there is a prima facie case established against the individual and it must submit a report to the President.
Ms Zulu-Sokoni: Yes, right.
Adv Bawa: On the basis of that the President must suspend the Public Protector. Right?
Ms Zulu-Sokoni: Yes.
Adv Bawa: Within 30 days of that suspension, the Judicial Complaints Commission must have a hearing. That hearing must be held in camera. And the individual is entitled to appear, to be heard, and to be represented by a legal practitioner of his choosing and the Judicial Service Commission must then make a finding as to whether the allegations have been substantiated or not substantiated. If not substantiated, they must recommend revocation of the suspension to the President and that suspension must then be immediately revoked.
Ms Zulu-Sokoni: Yes.
Adv Bawa: If they find that the allegation is substantiated, they must recommend removal and the President must then remove. So this is a process which is not exactly on all fours with South Africa, because South Africa does not involve its Judicial Service Commission or any Judicial committee under those auspices in its process. Would you agree with that?
Ms Zulu-Sokoni: Yes. In fact, I had pointed out that when the Zambian office was an executive ombudsman, it had a similar provision as you have now for removal. But later on in the constitution, it was standardised according to the judges.
Adv Bawa: So let me take you to the South African version and just point out where I think there is a difference in our understanding. Under the South African Constitution, which is section 194(1)(a) removal is based on misconduct, incapacity and incompetence. There is no provision for bankruptcy - just to state the obvious. Moreover, the drafters of our Constitution, have said that Public Protector must be removed for misconduct, not gross misconduct. Do you accept that there is a distinction between misconduct and gross misconduct; the lack of being more serious than the former?
Ms Zulu-Sokoni: Definitely.
Adv Bawa: Right. So, when you start in paragraph 34 of your statement that, in both jurisdictions, the grounds are the same as would be for the removal of a judge from office. That is not entirely correct. Would you agree with that?
Ms Zulu-Sokoni: The grounds for removal? You would have to show me the provision for the removal of judges in South Africa, but they should be the same.
Adv Bawa: The grounds are the removal of the judges. Are you comparing a Zambian judge with a Zambian Public Protector? Are you comparing a Zambian judge with a South African judge or you are comparing with the two Public Protectors?
Ms Zulu-Sokoni: This was a comparative analysis. Let me just look at the particular paragraphs,
Adv Bawa: It is paragraph 234. It is difficult to see because the preceding paragraph talks about the grounds of removal for a Public Protector, so I could have read it wrong and thought you were referring to a comparison between the two.
Ms Zulu-Sokoni: Yes, so I was comparing both offices. I was stating that in both jurisdictions, the grounds are the same as would be the removal of a judge from office. So both offices are referring to the grounds of misconduct, incapacity or incompetence.
Adv Bawa: If I take you to the section in the South African Constitution, which sets out the grounds for removal of a judge from office, then one sees a judge may be removed from office if the Judicial Service Commission finds an incapacity, which is correct; but a judge has to be guilty of gross incompetent or of gross misconduct. You will agree that ‘gross incompetence’ and ‘gross misconduct,’ are a higher standard of incompetence and a higher standard of misconduct. So in other words, in our South African Constitution, we set the removal of judges at a higher standard than what we set for the Public Protector.
Ms Zulu-Sokoni: Yes.
Adv Bawa: So it is not entirely correct to say that it is the same standard as a judge for the removal of a Public Protector in South Africa. It is indeed so in Zambia, but not in South Africa,
Ms Zulu-Sokoni: In terms of the fact that it is qualified by the use of grossly incompetent and gross misconduct, if we have to qualify that way, yes.
Adv Bawa: I do not want to go to that at the moment, but I will tell you that the way the definition of misconduct is characterized in the Zambian Constitution, is also different from the way the National Assembly has crafted its rules. The definitions of misconduct, even without the gross, are not entirely the same. Now, as I said to you, Zambia uses the Judicial Complaints Committee, and South Africa involves an independent panel. Right. Have you had an opportunity to look at the independent panel report?
Ms Zulu-Sokoni: No, I do not think I have had occasion to look at that report.
Adv Bawa: So, in South Africa, that independent panel is like the Zambian Judicial Commission, tasked with trying to make a determination whether there is a prima facie case. And you are aware that the independent panel in South Africa found that there was a prima facie case.
Ms Zulu-Sokoni: Yes, I am aware.
Adv Bawa: And you are aware that the Public Protector was afforded an opportunity to make submissions to put the evidence before the Committee and to deal with any allegations that were before the Committee?
Ms Zulu-Sokoni: Yes, I believe so.
Adv Bawa: And in this process, Parliament had to take at least two separate decisions, one to refer to the Committee to investigate the prima facie case. And once this Committee has done its job, it has to then go back to Parliament. And so there is a process in which, at every stage of the way, the Public Protector is afforded a hearing. Do you dispute that in any way?
Ms Zulu-Sokoni: No.
Adv Bawa: That is also a manner in which the Zambian process is different from the South African process. For example, when a report is generated out of this process, before the report goes to Parliament, the Public Protector is afforded an opportunity to provide comment on that report. That is not a similar process to that which exists in Zambia. Correct?
Ms Zulu-Sokoni: Yes.
Adv Bawa: Would it be fair to say that saying the two processes are analogous would not be correct? The Zambian process and the South African process are not exactly the same.
Ms Zulu-Sokoni: No, they are not the same. I would even venture to say that you have a well-refined process in that you have at least two or three tiers of reviewing the process of disciplining a Public Protector, whereas we have, I think, just two, but both are still the Judicial Complaints Commission.
Adv Bawa: When the Judicial Complaints Commission refers its prima facie case to the President to make a decision on whether the Zambian Public Protector should be suspended, it is not the job of parliament to interfere with the President's functions.
Ms Zulu-Sokoni: In the particular instance of Zambia, because it is not parliament that is involved, but all the same, taking into account that the whole process has proceeded as it should, I do not think there will be any need for anybody or any branch of government to interfere.
Adv Bawa: So let us work on the assumption that everything else is at ease. If I take you back to Section 194(3)(c) of the Constitution specifically 194, the provision that deals with the President's powers to suspend, it says: “The President may suspend the person from office at any time after the start of the proceedings of a Committee of the National Assembly from for the removal of that person and must remove a person from office upon adoption by the Assembly of the resolution calling for that person's removal.” Let us look at (a) and assume all things being equal that there is no breach of any law. They put someplace where the constitutional precepts have been complied with. Is it the role of the legislature to interfere with the President's discretion as to whether he should suspend or not?
Ms Zulu-Sokoni: All things being equal, and everything having been carried out according to the law, there is no need for the legislature to interfere.
Adv Bawa: And if the President does not do what the President is supposed to do, there is recourse to the judiciary. Would you agree?
Ms Zulu-Sokoni: Legally, yes,
Adv Bawa: Legally, you take the President on judicial review as the Public Protector did.
Ms Zulu-Sokoni: Would you repeat the question?
Adv Bawa: If you are of the view that the President, in suspending the person from office pursuant to the exercise of his powers under Section 194(3) then your resource is to the court to review the decision of the President.
Ms Zulu-Sokoni: Um, I believe that the President is a public officer and the office can be subject to judicial review. So it depends on the officer. If the officer feels that there is a need to review the decision of the President, then they could submit the decision of the President for judicial review.
Adv Bawa: We do not take issue with that in this country; the President is subject to judicial review. That has been decided years ago. That judgment which you referred to in paragraph 157, did you read the judgment in its entirety?
Ms Zulu-Sokoni: Which judgment?
Adv Bawa: Adv Mpofu took you to a High Court judgment in paragraph 157 which reached the conclusion that the President had improperly exercised these powers.
Ms Zulu-Sokoni: I do not know; if you could show me them.
Adv Mpofu: Just for the record I did not take her to that judgment; I just referred to a particular paragraph.
Chairperson: Indeed, you referred to a paragraph. That is correct; there was no reference to the judgment.
Adv Bawa: I am going to read it. It is a court judgment from the Western Cape High Court which concluded that the President had not acted properly or lawfully when he suspended the applicant. I asked you the question whether you had read this judgment.
Ms Zulu-Sokoni: I read the judgment but not putting particular paragraphs to mind. So they have to bring my mind to bear on each paragraph as we discuss it.
Adv Bawa: The suggestion was put to you that if the country acts in this manner, it acts unlawfully. The proposition was put to you that South Africa was running the risk of expulsion from the IOI because of improperly acting in certain circumstances. Is that correct?
Ms Zulu-Sokoni: I must qualify that. The International Ombudsman Institute would not lightly expel any country from the IOI. And I must state here that although I am speaking on behalf of the African Ombudsman and Mediators Association, I will just talk a little bit about the IOI. The IOI will engage with the ombudsman; they will engage the country; they will go through a whole process. I think, in their history, perhaps they have only ever expelled one member. So it is something that they do not do lightly. It is a very, very serious process.
Adv Bawa: As far as you are aware, has the IOI taken any steps to engage with the South African Parliament?
Ms Zulu-Sokoni: No, they have not.
Adv Bawa: Now, as I understand your evidence, you are not saying that the President cannot suspend the Public Protector, but that when the President suspends the Public Protector, it must be done in a procedurally fair manner.
Ms Zulu-Sokoni: Yes. Correct.
Adv Bawa: And if ultimately the courts find that that is the case, there would be no quibble with it?
Ms Zulu-Sokoni: No, not at all.
Adv Mpofu: I misunderstood that suggestion that the courts found that it was procedurally fair.
Adv Bawa: No, I did not say the courts found. I said “if ultimately”. So maybe to complete it: are you aware that that judgment is currently the subject matter of a reserved judgment?
Adv Mpofu: Confirmation proceedings.
Adv Bawa: Confirmation proceedings of the Constitutional Court?
Ms Zulu-Sokoni: No, I am not aware.
Adv Mpofu: Just to be clear, in fairness to the Committee, this is much more complicated than just a confirmation process. There is a confirmation of proceedings, in terms of Chapter 172(2)(b) of the Constitution, then there is an appeal by Parliament and the DA, and then there is a cross-appeal by the Public Protector - just so that we are clear.
Adv Bawa: In paragraph 32 of your statement, you deal with the appointment process and you make the statement that the Public Protector has the same qualifications as a judge of a high court. Do you see that?
Ms Zulu-Sokoni: Yes.
Adv Bawa: Now, let me say this: in South Africa, the criteria for a Public Protector is that the person must be a South African citizen and must be fit and proper. You are a lawyer, so you understand what I mean when I say, “fit and proper”.
Ms Zulu-Sokoni: That is correct.
Adv Bawa: Now the Public Protector Act says that they must be legally experienced as a judge – for the record, that is section 1(A)(3) – a legal practitioner or lecturer or experience in the administration of justice, public administration, public finance or experience as a Member of Parliament. For a judge, the Constitution, in section 174(1) says: "Any properly qualified woman or man who is fit and proper. There is no requirement for a judge in this country to be a South African citizen".
Adv Mpofu: That is not so.
Adv Bawa: There is no constitutional requirement for a judge in this country to be a South African citizen.
Adv Mpofu: But it depends on what kind of judge you are talking about.
Adv Bawa: We talking about an ordinary High Court judge. Let us qualify this because the statement says, “qualifies as a judge of the High Court.”
Adv Mpofu: Yes, no. It is not as simple as that. For certain courts, such as the High Court, you may not be South African, but for the Constitutional Court, you have to be a South African citizen.
Adv Bawa: The statement says that you must have the same qualifications as a judge of the High Court. So let us confine our conversation to the judge of that court. So if we look at the provision in 174(1), we see that the person who is to be appointed as a judge must be an appropriately qualified person who is fit and proper to be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must be a citizen. So that is only a requirement for the highest court of the land, as Adv Mpofu was helpfully pointing out. I apologise if I was misleading. And what we as practitioners known as the Mohamed guidelines says that the individual must be a technically competent lawyer. In other words, they must have a legal qualification to be appointed as a judge. But there is no requirement in South Africa that an individual must have a legal qualification to be appointed as a Public Protector. Were you aware of that?
Ms Zulu-Sokoni: I am not aware of that. But the standards, the OR Tambo standards and the Venice Principles put it at a minimum, that at least, terms and conditions of service must be at the minimum of a judge, which means that even the qualifications, and if it is not the qualifications, at least the status of that person and the level of integrity (must be at that level). It is not in all countries where the ombudsman is a lawyer. For example, in New Zealand, there is no requirement for the ombudsman to be a lawyer. And I think in several other jurisdictions, but it is the standard that we are talking about here.
Adv Bawa: And that standard, which is common to both, is what you and I, as lawyers understand, as what encapsulates 'fit and proper'.
Ms Zulu-Sokoni: Yes.
Adv Bawa: Whether you have a law degree or not, it would be those criteria that you would understand, and that courts would generally understand. In Zambia, to become the Public Protector, you must have the same qualifications as for the appointment of a judge.
Ms Zulu-Sokoni: That is correct.
Adv Bawa: Right. And you must be a person of what they call “proven integrity.” And you must have been a legal practitioner in the superior courts for a minimum of 10 to 15 years.
Ms Zulu-Sokoni: Yes.
Adv Bawa: So there is a more stringent requirement in Zambia than in South Africa. So for example, the Public Protector in South Africa would not have been appointed as a Public Protector in Zambia, as I understand it, because she would not have had the requisite 10 to 15 years’ experience in a superior court as a practitioner.
Ms Zulu-Sokoni: If you say so, yes.
Adv Bawa: In other words, the criteria for the qualifications required by a South African Public Protector is different from what they will be in Zambia. Do you agree with that?
Ms Zulu-Sokoni: Well, the fact that there are references to a judge in both provisions, is the reason we equated both offices to have qualifications that I equate with a judge before one can be considered for the office of ombudsman of either country. However, of course, if you go into the technical details of the framing of the different legislation, you are bound to find some differences, and you are bound to find some similarities.
Adv Bawa: The analogy between the Public Protector and a judge comes about, I am assuming and tell me if I am wrong, because of the analogy, which exists in the Zambian environment in the way that it was couched, which is absent from the South African legislative regime.
Ms Zulu-Sokoni: I think when doing this paper, I also looked at the terms and conditions of service. In your legislation, it should be in the Public Protector Act, where it says that conditions of service should be created at a minimum of those of a Supreme Court judge. So, according to my understanding, if you are willing to accord a person the terms and conditions of service of a judge of a Supreme Court, it must be a person who is sufficiently qualified to be appointed as a judge. So I think that is the reason I was looking at this holistically.
Adv Bawa: We will come to conditions of service in a moment, but you will agree that conditions of service include a number of issues, such as your term of office, your remuneration, your leave, the conditions under which you engage with employees, depending on which level you are at. Correct?
Ms Zulu-Sokoni: Correct.
Adv Bawa: And one can understand that you do not want the Public Protector in office at a salary, which is so low, that makes the Office of the Public Protector susceptible or vulnerable to undue influence, given the job that the Public Protector has to do. Do you agree with that?
Ms Zulu-Sokoni: Yes.
Adv Bawa: So you would say it is pitched at the same level as a judge because you also do not want the judge to be susceptible to those kinds of undue influence.
Ms Zulu-Sokoni: That is correct.
Adv Bawa: We talked about independence and impartiality - that is non-negotiable, as is a high standard of professional ethics, transparency, and truthfulness. They are also non-negotiable.
Ms Zulu-Sokoni: They are non-negotiable, but a person in office is a human being and so there may be lapses here and there. That is the reason the decisions of an Ombudsman can be subject to judicial review.
Adv Bawa: Let me put it to you this way: if you want to decide when you may consider whether there has been misconduct or incompetence, you must have regard to the standards and duties that you expect from a Public Protector.
Ms Zulu-Sokoni: That is correct.
Adv Bawa: Whether you couch it and give meaning to it as fit and proper or those other standards, you cannot ignore those. Would you agree with that?
Ms Zulu-Sokoni: No, you cannot ignore them.
Adv Bawa: Now you had a conversation about the binding effect of court judgments and there was some suggestion that when you make Public Protector’s decisions binding and enforceable, you in some way, make the Office vulnerable, or you in some way impugn the independence of the Office because you make it susceptible to interference by the judiciary in the decisions taken. Do I understand you correctly?
Ms Zulu-Sokoni: Not necessarily by the judiciary, because in both instances where you have the classical ombudsman and the hybrid ombudsman, or an executive ombudsman and the parliamentary ombudsman, the decisions can be subject to judicial review. So what is the problem with the binding power? It is a problem with the Executive. The Public Protector is going to go in and investigate day-to-day office functions of a respondent institution and where the findings are binding … You see, the Ombudsman has a wider mandate than law enforcement and whereas the institution can go in and investigate a specific complaint when the ombudsman goes in, they can widen the net of the investigation as much as they want, and they can pick up documents without necessarily going to a court of law, whereas law enforcement agents would need to get a court order to come and pick up documents and search. But the Ombudsman can just go in. Because of the nature of the job, you find that the executives panic because they know that the Public Protector report comes out as binding. That has an impact on the executive, which may cause them to try to compromise with either the ombudsman or the judiciary. It is just the way it is. It is the nature of the office. So it is not that we are saying that the judiciary itself may want to interfere with the Office of the Ombudsman, but because it is a binding decision and it is like creating a parallel court system. And that cannot be, of course. You and I know that the Ombudsman cannot be the court. The court dispenses justice and that is its duty. So you find that there may be a lot of decisions that may be going against an ombudsman, in that respect. So, it is just for the protection of all arms of government, that systems are encouraged not to give the ombudsman binding powers. It is just the unique uniqueness of the job.
Adv Bawa: It also gives the ombudsman power to make sure that its reports are complied with – which is the converse of that coin.
Ms Zulu-Sokoni: Yes. So now, the reports must be complied with. And this is an argument that we have also been having in Zambia. For example, the Auditor-General in Zambia tables reports before Parliament and then they respond and institutions are called to Parliament to answer to the parliamentary committee that deals with those financial matters. They are compelled by the committee to either adhere to what the committee orders and any recommendation from the Auditor General has to go also to the law enforcement agencies as a requirement. So we have also been requesting that we should be able to table our reports before a parliamentary committee and have our reports enforced by way of the parliamentary committee. So we have binding powers now. We have been given binding powers so we do not need to use the legislature and our Act does not even require us to table our reports; it is just for notification to Parliament. We just send our reports to Parliament and they can comment if they want to. But then that is the way it is.
Adv Bawa: So there seem to be two notions that seem to arise: that it results in unwanted or unwarranted attention to your report because you have binding powers. And that automatically gives rise to costly litigation. But you said that that has not been your experience in Zambia.
Ms Zulu-Sokoni: Ever since we were given binding powers, now responding institutions can take us to court and there has been one instance when the respondent institution took us to court. However, as I said, it has made us up our game now because we have to ensure that we interrogate each submission. When we carry out our investigations, to ensure that we do not get called by the courts for judicial review because a respondent institution is not happy.
Adv Bawa: So let us take this one step further. There is an assumption to be made here that you only get taken to court because the recipient – executive authority / government department – is not happy. But you also accept that if you get taken to court, and the court finds that you did not comply with your legislative regime, or did not give implicated parties a hearing, that does not relate to the fact that your order is binding, that goes the fact that you did not do your job properly in the first place. Would you agree with that?
Ms Zulu-Sokoni: I would not agree with that because even a court can find against a particular party, and that party can appeal. It does not mean that the court has not done its job properly. It is just an issue of the court judgment being reviewed. And that is the way that the Ombudsman reports must also be taken when the matter goes for judicial review. If the matter is reviewed and it goes in the favour of the Ombudsman, well and good; if it does not, it is the duty of the Ombudsman, to interrogate that judgment and ensure that they do not repeat the errors in that particular report. The concept of having the reports of the Ombudsman reviewed by the courts is a cleansing process. It is a quality control process.
Adv Bawa: So you presuppose in your hypothesis that the Public Protector looks at the judgment, fixes what is wrong, cleanses her office and goes on. But take a hypothetical instance, where the next 10 reports after that judgment reflect that the Public Protector does the same thing. Can you then say the cleansing process has worked?
Ms Zulu-Sokoni: I would not expect that the ombudsman would commit the same mistake. I would not expect that.
Adv Bawa: That is not what you expect. One of the implicated persons has taken the ombudsman to court and said that you did not give me a hearing before you made a finding against me. A year or two later, that very same person is again the subject matter of a report and he comes back to court and says again, the Public Protector has issued a report and did not give me a hearing. If that happens?
Ms Zulu-Sokoni: Well, the courts can still take the matter further. Within the judgment, they can note it. I mean, it is not good for the reputation of an ombudsman to have judgments coming out continually on the same issue, especially on the same matter the same error, the same mistake. Obviously, I would take it seriously and ensure that that error is corrected.
Adv Bawa: So if there are judgments that repeatedly come out with errors of procedural irregularities, or non-compliance with natural justice, and there is no cleansing process, what do you expect the watchdog of a Public Protector to do?
Ms Zulu-Sokoni: Same mistakes, same errors?
Adv Bawa: The same mistake, the same errors are repeatedly happening. I am taking this hypothetically because I do not want a suggestion that I am misrepresenting anyone. I am talking about the level of principle.
Chairperson: Yes, we are still on a general level. I am reminded now that you wanted specific when Adv Mpofu was on general. So let us stay there, Adv Bawa.
Ms Zulu-Sokoni: Okay, so I think for me to put it this way. It is a self-cleansing process because the complainant has the right to go to a court of law and appeal to the courts there has been an injustice by the Public Protector. I think through the process of appeal and the court judgments, it is sufficient for the ombudsman to perfect one's trade and ensure not to carry out a similar mistake. But I do not know with the watchdog – the oversight responsibility of Parliament. I am trying to compare it with our jurisdiction. I think the system is different in the way the laws are set out. Then I do not think there will be an instance where parliament would interfere with the operations of the office of the ombudsman.
Adv Bawa: On the hypothesis that you have answered now when the poorest of the poor are aggrieved by what the Public Protector does and let us assume 10 or 20 poor people went to the Public Protector. As the last resort, you are saying if you do not like it, then you can go and complain to Parliament, and although Parliament is the oversight body, it cannot do anything about it. Is that what you are saying?
Ms Zulu-Sokoni: No, they can, they can go and complain. I think that is your system here in South Africa, they can go to Parliament. Comparing it to our system in Zambia, I think a person who is unhappy with the professional conduct of the ombudsman would equally go to the Judicial Complaints Commission. That is the mirror reflection that I can give you of the way the process would happen. But it would have to be a complainant to go to the Judicial Complaints Commission; it would not be a branch of government. Did you say the judiciary or the legislature submits a complaint against the Public Protector? I think that is where the difference is: that it must be a member of the public, a person who has an interest, who complains. Does that answer your question?
Adv Bawa: Partially. And there would be nothing which stops a political party from complaining?
Ms Zulu-Sokoni: They can complain.
Adv Bawa: I want to quickly take you to the Ndene judgment. I am assuming that is the judgment you are referring to.
Ms Zulu-Sokoni: Yes,
Adv Bawa: It is in Bundle F, item 176. It was put to you in evidence that you cannot blame the Zambian Court because they were misled by the South African Court. That was what was put to you yesterday.
Adv Mpofu: Are you quoting me now? I want to hear.
Adv Bawa: You put the proposition in passing and the witness did not answer that you could not blame the Zambian Constitutional Court because they were misled by the South African Court. Is that not so?
Adv Mpofu: No, I did not say that.
Adv Bawa: Well, let us leave it at that if you did not say that.
Adv Mpofu: Now, if I may just be of help. I said that the Zambian Court relied on our Home Affairs v Public Protector case. And what I said was that I could not blame them for the reviewability versus the non-reviewability, which is separate from the question of a binding or a common recommendation regime. I think the last thing I said was that the Home Affairs case was not really about the powers of the Public Protector, but whether the Public Protector is an organ of the state and therefore susceptible to the Promotion of Administrative Justice Act (PAJA).
Adv Bawa: My apologies, Adv Mpofu, if I misconstrued what you said yesterday. When we argue, we can address it.
Adv Mpofu: Accepted.
Chairperson: Thank you for sorting each other out.
Adv Bawa: The judgment first sets out what each counsel has argued to the court and the arguments made, and one of the counsel had in effect relied on as one of the grounds what the South African Court had found in respect of that. But if you go to page 511. The number is J28.
Adv Mpofu: Again I do not make a big fuss about this. I just wanted to record this judgment was not given to us until teatime but the witness had referred to it last year.
Chairperson: That has been placed on record. Thank you for talking about it.
Adv Bawa: It was an oversight.
Chairperson: Let us leave it with the apology.
Adv Bawa: The second last paragraph on page 511. The court says: “We have considered the written arguments and oral submissions made by counsel on both sides as well as the authority cited to determine two issues in this matter. One is that the Office of the Public Protector ranks equivalently with the High Court and on the basis that it would so rank equivalently, there is an argument to be made that it is not amenable to judicial review by the High Court.
Ms Zulu-Sokoni: That was the issue before the court.
Adv Bawa: What the court then does in this judgment is, in the first instance, in paragraph 13, it repeats that and they say they will consider the issues set out and then, on page 513, detail what they have in regard to the relevant provisions of the Constitution, the Zambian Public Protector Act on the establishment functions and powers of the Public Protector. They've considered the constitutional provisions and the provisions of the High Court Act Chapter Seven of the laws of Zambia, relating to the establishment of the jurisdiction and the powers of the high court, as well as its practices and procedures. In the next couple of pages, it sets out a number of those legislative provisions that it then considers and discusses. 518 says: “An examination of the provisions of article 243(1) and (2) of the Constitution reveals that although the Office of the Public Protector is created by the Constitution, and although the qualifications for appointment as Public Protector are the same as those required for appointment as a judge, the Public Protector is not a court and does not perform adjudicator functions as a judge of the High Court. The Public Protector’s role is completely different from that as shown by the functions of that office, which in terms of articles 244(1) and (2) are investigating an action and decision-making, or whether an action by a state institution in the performance of an administrative function, which action is unfair, unreasonable, illegal or is not compliant with the rules of natural justice. Further, in terms of sections 6 and 13 of the Public Protector Act, the Public Protector's mandate is to investigate allegations of maladministration by state institutions. The court then concludes with references to the provisions of the Constitution and the Public Protector Act, that the jurisdiction of the Public Protector Act is specific; it is restricted to investigations of allegations of maladministration, and, as already observed, it is different from the jurisdiction of the High Court, which has unlimited and original jurisdiction in civil and criminal matters, appellate and supervisory jurisdictions and jurisdictions to review decisions in accordance with the law subject only to the article. Would you agree they come to this finding on the basis of a look at, and interpretation of, the Zambian legal provisions?
Ms Zulu-Sokoni: Yes, although they did consider the South African case.
Adv Bawa: Yes. But even if they did not consider the South African case, they come to that conclusion based on their own Zambian legislation. They go further, and say that in the South African case, which is then referred to by one of the counsel in the matter, cited by the respondent. The Supreme Court of Appeal of South Africa stated the following regarding the Public Protector of South Africa: “The Public Protector is not a court, does not exercise judicial power, cannot be equated with the court, her role is completely different from that of a court and the jurisdictional arrangements of the courts are entirely irrelevant to the determination of the Public Protector’s jurisdiction. Then, as the Zambian Court did, the South African Court looked at the provisions of the Constitution, and the South African Public Protector Act to ascertain the bounds of the Public Protector’s jurisdiction. The two courts performed the same exercise in different jurisdictions.
Ms Zulu-Sokoni: Correct.
Adv Bawa: And then they say: “Similarly, in the case of Zambia, it is evident that the Public Protector is not the court based on Article 20 of the Zambian Constitution, which states that the composition of the judiciary does not include the Office of the Public Protector. Correct?
Ms Zulu-Sokoni: Yes, correct.
Adv Bawa: So without belabouring the point, they come to the conclusion that because you are not the high court, you are subject to judicial review on your decisions. Correct?
Ms Zulu-Sokoni: Correct.
Adv Bawa: I go to page 523 of the judgment. They consider whether you should be amenable to judicial review by the courts and they come to the conclusion that it is settled law that judicial review lies against an inferior court and against any person or bodies which perform public duties or public functions. The Office of the Public Protector is a public office and they then define it and they say further, it is undisputed that the Public Protector performs public functions. Since we have determined that it is not on par with the High Court it follows that as a public office that must be amenable to judicial review. Right. And the argument was made by your Office that the Public Protector should not be amenable to judicial review because the Office is independent. And that argument, your Constitutional Court rejected. Correct?
Ms Zulu-Sokoni: Well, according to the judgment, yes.
Adv Bawa: According to the judgment, yes. As you indicated earlier on, this was the only judgment. There was not anything after this to the contrary. And the court then concludes that the exercise of the power of the court to review the decisions of the Public Protector does not impugn the independence of the Office of the Public Protector. Correct?
Ms Zulu-Sokoni: Right.
Adv Bawa: Go to page 526, just to put this to bed, the court said: “In determining this matter, we found that South African case law regarding the status of the Public Protector in that country helpful in that they clearly said that the Public Protector is subject to judicial review.” So the Zambia Constitutional Court cannot put it any higher than saying, “We find the jurisprudence of South Africa helpful, but on its own, the Zambia law allows for it.”
Ms Zulu-Sokoni: Repeat the question, please.
Adv Bawa: It is almost an arbitrary remark in the judgment that the South African authorities are helpful. Prior to coming to the South African authorities, based on Zambian law, the Constitutional Court had already concluded the Public Protector is subject to judicial review.
Ms Zulu-Sokoni: Yes, that is exactly the reason I quoted this judgment to show that precedents across the region can be used to build up jurisprudence in regard to the concepts of the Ombudsman. And it is very important that we build up the jurisprudence. And that is the reason I quoted this judgment.
Adv Bawa: The point I am trying to make is that the conclusion reached by the Zambian Court would have been the same, even if that South African case were not available.
Ms Zulu-Sokoni: But South African judgment was of persuasive value, and that is the reason they referred to it.
Adv Bawa: If we go to paragraphs 20 to 22 of your general affidavit, page 210. You explained earlier on in your affidavit that it offers you some protection from the executive and that an ombud can only have complete independence from interference if the reports go no further than a recommendation. It is also so that irrespective of whether you have a recommendation or binding effect if there is a desire to interfere in the Public Protector’s report, that would happen.
Ms Zulu-Sokoni: As I have said this is a tried and tested system which has been going on for 200 years or so. I am sure there were jurisdictions even within the Scandinavian era where they may have tried to give binding decisions to the ombudsman, but they found that it was not working. So, this is the reason you find all the standards reflect that the reports of the Ombudsman must only have the effect of a recommendation. As I said, it is a way of using soft power and persuasion to make the respondent institutions comply and when they do not comply, Parliament then comes in to enforce. That is also a good cleansing system for the ombudsman because where the ombudsman appears conflicted, that report is going to sit before Parliament and it gives a chance for Parliament is not a complainant against the ombudsman’s institution because the ombudsman is tabling the report before Parliament. And because they are mere recommendations, they are able to say, “Ombudsman, we reject your report.” The ombudsman can go back and redo the report and resubmit with all the standards that we are talking about in ombudsmanship - impartiality, independence and all the other processes, such as following the principles of natural justice. Parliament is able to screen and quality control and there would be no need for a process where Parliament is actually the complainant because they quality control themselves, they ensure that the standards of the report are being met.
Adv Bawa: That is in the Zambian system. Correct?
Ms Zulu-Sokoni: In the Zambian system, we issue binding reports. I am talking now as the AOMA representative. Talking about the ombudsmen standards, I am saying that if you look across all the documents that we have presented, they are talking about recommendations, recommendations, recommendations. And I am saying it is because it is a tried and tested system.
Adv Bawa: In other words, if I understand you correctly, you are a proponent of the recommendation system, whereas the Zambian and South African parliaments have chosen differently?
Ms Zulu-Sokoni: That is correct.
Adv Bawa: Okay. But you also accept that the mandate of the Public Protector has been strengthened in Zambia by making the recommendations issued in the final reports binding - that is in paragraph 38 on page 238 of the statement. The mandate of the Public Protector has been strengthened by making the recommendations issued in the final reports, binding.
Ms Zulu-Sokoni: Yes, the mandate, the aim of giving binding decisions is to strengthen the institution of the Ombudsman, but it is a double-edged sword; it comes back to bite the ombudsman. So, as I have said, in Zambia, what we have done is to ensure that each and every report coming out, has been interrogated and each and every standard is there but there can be an instance, and there will be an instance, where again, we come up with a finding that may not be acceptable to a respondent and we may have to go to court, even though we have tried to avoid going to court. We do not have the sort of funding that can allow us to keep on continually litigating. And again, an Office becomes more challenged to go out and investigate the most sensitive of cases, because you know that you do not have that binding power effect and when the report comes out, it is Parliament that is supposed to ensure that the report is enforced and the recommendations are enforced.
Adv Bawa: I want to put to you that you look at this from the perspective of a diligent Public Protector in the sense that – and again I put this at the level of generality without making any reference – you have said that because this report is binding, you make sure and work hard at ensuring that the reports comply with all the requirements. But the other side of that is that if you are not a diligent Public Protector, and the reports are not binding, you may very well just ignore what you are supposed to do and just hand out sloppy reports. Would you agree that that is also a danger that public protectors run into? I am putting the general position. In other words, I want to say to you that nothing is cast in stone – there are pros and cons to both systems.
Ms Zulu-Sokoni: It would be at their peril to do such a thing, because again it goes back all the way to your vetting system when you haven't been put in Office. And then maybe I should state that, for ombudsman institutions, there is no training school. You get into the job and you start learning on the job how you are supposed to carry out your duties. This is the reason we saw the need that we have to have this association, where we have tailor-made courses because we have newly appointed ombudspersons coming to these courses. We engage them to find out what are their operational problems. If I may speak for the IOI, the IOI even has a fund for each region where they ask each region what problems and challenges it is facing; what help is needed? Is it report writing, staff, investigation manuals, procedures, reports, etc? So principles of natural justice have to follow at each and every stage.
Adv Bawa: Let us face that for a second. Reports have to go to people who are implicated, they must get an opportunity to make comments and the Public Protector must take those comments into account. I think those are the first principles. We do not take issue with that. And let us assume an implicated person says, “You did not give me an opportunity for whatever reason, whether it was a bona fide error, whether it was deliberate, I am implicated and I did not get a hearing,” that would be a basis, if you went to court, for a court to set aside that report. Would you agree?
Ms Zulu-Sokoni: Yes. Right.
Adv Bawa: Now a court and the parties are agreed that X did not get a hearing, so the report is set aside, but the Public Protector then appeals against the decision of that High Court right up to the Constitutional Court. What do you make of that?
Ms Zulu-Sokoni: Well, the Public Protector may appeal if he did not get justice in a particular judgment. I know, speaking for us, we did not want to appeal. In any case, we did not have the resources . These were private lawyers and we had to pay them and we did not have the resources to pay them, to take them to the next level, because we were not satisfied.
Adv Bawa: If you have lost at every step of the way up to the Constitutional Court, your application for leave to appeal, your petition to the Supreme Court of Appeal, your reconsideration by the Judge President of the Supreme Court of Appeal, and you have entered the Constitutional Court, and you do not do that in only one case, you do that in more than one case?
Ms Zulu-Sokoni: Then I think it is time to rethink the system. You must move away from binding decisions to recommendations because what if the next ombudsman does the same, and the next. You have to rethink the whole system.
Adv Bawa: You do not think that an ombudsman who has almost the same qualifications and experience as a judge, must at some point realise that maybe they got the law wrong.
Ms Zulu-Sokoni: The Ombudsman does not operate in isolation. I think they do seek out legal opinions and the counsel of legal and investigation officers within their office. I would not be able to say off the cuff that it is the decision of a single person, but because we look at the Ombudsman as a legal entity so we always ascribe all the blame to the Ombudsman, but the Ombudsman did not do that.
Adv Bawa: But the Ombudsman is always ultimately accountable.
Chairperson: We will just pause and continue after tea.
Adv Bawa: Ms Sokoni, I want to take you to the paper you presented on 21 September 2021. I am taking you to this paper to show you that the paper reflects the South African law erroneously, so let me have this discussion with you about that. For the record, it is page 336, the case of Economic Freedom Fighters v Speaker where you say the mandate of the Public Protector was strengthened when recommendations were converted to judgments. You then make a statement, that before the judgment, the remedial recommendation of the Public Protector had always been taken as a mere recommendation, which protected the Public Protector from litigation from government departments not happy with Public Protector findings. I am going to put it to you that this 31 March 2016 judgment was added to the Supreme Court of Appeal to its October 2015 SABC v Democratic Alliance judgment where the Appeal Court accepted that the Public Protector report findings and remedial measures could not be ignored. In other words, it was more than a mere recommendation. Were you aware of the SABC v DA judgment?
Ms Zulu-Sokoni: No.
Adv Bawa: If we go to what you say about the CIEX case further down on page 867 on the Reserve Bank of South Africa (SARB). I want to come back to the facts of the case, but I first want to take you to the part where you say the most concerning part was because of the Nkandla case the remedial action proposals contained in the Public Protector report had now become binding and the Reserve Bank and the legislature would have been compelled to comply with the remedial action resolution of the Public Protector. Correct?
Ms Zulu-Sokoni: Yes.
Adv Bawa: Now, one of the remedial actions in this case was a recommendation (Bundle A page 70 point 2) of a Constitutional Amendment. Do you recall that Adv Mpofu discussed with you whether the Public Protector had the power to recommend a Constitutional Amendment? And you agreed with him that the Public Protector is entitled to make recommendations.
Ms Zulu-Sokoni: Within the framework of the standards I had quoted, I'd say that in some jurisdictions, especially in Europe, the ombudspersons do make recommendations for changes in laws. You saw it under the Venice Principles so it was in that regard I answered in the affirmative.
Adv Bawa: In fact, it is healthy in a democracy that anybody can make a recommendation to a Parliament if they think that there should be amendments made to the laws or the Constitution. Would you agree with that as a general proposition?
Ms Zulu-Sokoni: Yes, if it is a recommendation; but if it is binding, it becomes a problem.
Adv Bawa: Let me take you back to first principles as a lawyer. As lawyers, you and I would understand that the use of the phrase “must” indicates peremptory language. In other words, you must do it. Would you agree with that?
Ms Zulu-Sokoni: Yes.
Adv Bawa: So when the Public Protector – and we are now at the CIEX case and we are post-EFF and post-Nkandla, and we all know that the Public Protector’s report is binding, and everybody must comply. Correct?
Ms Zulu-Sokoni: Correct.
Adv Bawa: So when the Public Protector issues a report that says the Chairperson of the Portfolio Committee on Justice and Correctional Services must initiate the process that will result in the amendment of section 224 of the Constitution, in pursuit of improving socio-economic conditions of the citizens of the Republic, by introducing a motion in terms of section 73(2) of the Constitution in the National Assembly, and they have to deal with the matter in terms of section 74, 75, and 76 of the Constitution, and then goes and tells the Portfolio Committee what that Amendment should read as well, would you agree that in the context of South Africa, that is not a recommendation? It is binding on the legislature by the Public Protector to amend the Constitution in a particular manner.
Ms Zulu-Sokoni: Yes, in this specific case because the Public Protector issued this as a binding report. However, I do not know if before this report was issued, there was a consultation with the Portfolio Committee Chairperson.
Adv Bawa: Absolutely no consultation. The provisional report that came out made no mention of a constitutional amendment – that is common cause. The constitutional amendment came in afterwards, and there was no consultation.
Ms Zulu-Sokoni: I would have expected that a lesson would be learnt from this one. If the matter went to court, I am sure the decision was declared ultra vires. So it should have been a lesson learned for the office of the Ombudsman for future reference, to ensure there was not an ultra vires action in the future. As I said, with the Ombudsman's work, no course book or directory tells you that this is the way you are supposed to do your work, and you are supposed to apply the standards accordingly. So I do agree with you, as you have stated.
Adv Bawa: So, the Public Protector opposes this relief. I think, she initially abides by the relief, and then later opposes the relief. And there is an order taken. The remaining part of the report is the CIEX judgment and you would recall that you sided with the minority judgment. This is the ABSA CIEX matter dealing with the amendment of the Constitution. Do you recall? Yes, precisely with which parts of the minority judgment do you find yourself in agreement? Because it is a very complicated and lengthy judgment. But if you can, instead of just telling us you agree with the minority judge, give us what precisely you agree with.
Ms Zulu-Sokoni: Yes, I would state precisely that the minority judgment departed from the other judgment because of the 15% personal costs award to the Public Protector. And it is in that respect, that I took issue with the judgment of the other judges. I think it was enough for the court to say the actions of the Public Protector were wrong, were unconstitutional, and award costs accordingly. But to award, personally, the costs of an entire institution, and we are talking about the Reserve Bank of South Africa, against an individual who was performing an official function, is unfair. Secondly, that person was not even a party to the whole action. I think that is the reason I agreed with the minority judgment.
Adv Bawa: This judgment was not just issued in favour of SARB. I have checked and SARB did not claim the 15% from the Public Protector’s Office, but there were other parties in this matter that incurred legal costs, for example, Absa Bank, which is not a government body. You might say a bank has deep pockets, but they are not an organ of state nor were they the litigant before court and they would be entitled to those costs. If you go further in paragraph seven where you say the majority judgment ordered the Public Protector to be held liable for 15% of the legal costs for procedural errors which could have been easily corrected if the Public Protector’s appropriate remedial action conclusions had been left at the level of recommendations – which are not binding decisions.
The South African Constitutional Court, in a majority judgment in November 2018, upheld the High Court order issued in February 2018 for the Public Protector to be held liable for 15% of the legal fees for procedural errors, which could have been easily corrected at the Public Protector’s Office if the appropriate remedial action conclusions had been left at the level of recommendations and not binding decisions. Can I tell you this? We seem to be blaming a system and not the person who incurs the errors in the institution. Every answer seems to be that, when there is a mistake, it is because these decisions are binding, as opposed to whether should we not explore why these mistakes occur and if they are bona fide mistakes or if they have other motives behind them?
Ms Zulu-Sokoni: I recently issued a report regarding land management in Zambia and in that report, I quoted an Act that had been repealed and replaced by another Act, but because our law indexes did not have the new Act, I issued that report. I was then advised by the particular sector, I think it was to do with building regulations, and the administrative centre reported to Parliament. I was advised by that particular sector that I had quoted the law wrongly and misapplied it. Because they brought it to my attention, I recalled the report and we are in the process of doing the corrections. My Office has binding powers but because it was still in the process of circulation, I was able to correct the report. This is why I am saying these mistakes can happen. But if you apply the appropriate principles, there is no way you can have a situation where you are litigating over and over again on a matter.
Adv Bawa: I want to just read a few of the paragraphs of the majority judgment to save you from reading the majority judgment. The court decision was not simply based on what you refer to as “procedural irregularities.” In paragraph 146 the Court says, "Personal cost orders are granted when the representatives show a gross disregard for the professional responsibilities and act inappropriately and in an egregious manner.” Let us take the Public Protector out of the equation. If it had been anybody else before court, and the court found that the person showed a gross disregard for professional responsibilities and acted inappropriately and in an egregious manner, and the court consequently exercised its discretion on a cost order, would you take issue with that?
Ms Zulu-Sokoni: I beg your pardon. Rephrase the question.
Adv Bawa: Let us assume the litigant is not the Public Protector. Let us assume the litigant is anybody else. Any litigant for the Constitutional Court. Right?
Ms Zulu-Sokoni: Yes.
Adv Bawa: Let us forget about the facts of the matter for a moment. But whoever is before that court on affidavits, and the court concludes the following in respect of that litigant: you showed a gross disregard for your professional responsibilities and you acted inappropriately, and in an egregious manner, would the court be entitled to show its displeasure in making a cost award?
Ms Zulu-Sokoni: I think for me, it would be sufficient for the court to declare that the particular subjects had acted ultra vires their powers and to either reverse or review. But to ascribe personal costs and the personal cost of an institution to an individual, especially being the ombudsman… This is why I said that the aggrieved parties in this matter, whether it was the Reserve Bank or Absa as the aggrieved parties, go to the court and say they seek redress on the matter and against the person who was acting in an official capacity. The court then effects a personal costs award on a single individual against this institution that is complaining about a person who was acting in their official capacity. I would not agree with that.
Adv Bawa: But a court is entitled to exercise discretion and issue court orders and those who appear before this court must obey those orders. Do you agree?
Ms Zulu-Sokoni: And what was the result of that personal cost award?
Adv Bawa: Let us come to that in a moment. Under the Zambian Constitution, a Public Protector can be removed from office for gross misconduct as we have already agreed?
Ms Zulu-Sokoni: Yes.
Adv Bawa: And that gross misconduct includes behaviour that is prejudicial or inimical to the economy or the security of the state. Correct?
Ms Zulu-Sokoni: I haven’t read it recently.
Adv Bawa: I read Article 266 of your constitution. Gross misconduct includes behaviour that is prejudicial or inimical to the economy or the security of the state. Now, would you say conduct that causes a significant depreciation in the currency, the Zambian currency, to the point where the country loses billions of rands would be recorded as behaviour that is prejudicial to the economy?
Ms Zulu-Sokoni: Well, I suppose it would depend on the facts of the case; it could be in error. It could not be deliberate. I do not know.
Adv Bawa: So in the circumstances of what's before the Constitutional Court, the Public Protector issued a final report, in circumstances where the Reserve Bank had specifically asked for an opportunity to look at the report to ensure that there was no harm to the economy. That was not adhered to and the report was not provided to the Reserve Bank. That resulted in a significant depreciation in the Rand and the sale by non-resident investors of R1.3 billion worth of South African government bonds. Now, on the Zambian test, that could conceivably fall within the category of gross misconduct on the level of principle. Would you agree?
Ms Zulu-Sokoni: According to what you have read, I suppose so, because I do not have it here.
Adv Bawa: Let us suppose that what I have read in Article 266 is correct. Let me take that a step further in what the court says. The court says: “Personal cost orders are against those who exercise public power when they act in bad faith, or they act in gross negligence.” At the level of principle, is there something wrong with that reasoning?
Ms Zulu-Sokoni: No.
Adv Bawa: The court goes further and says that the Public Protector’s explanation of the meeting with the State Security Agency is not only woefully late but almost unintelligible. Would you expect the Public Protector to put explanations before the court that are unintelligible?
Ms Zulu-Sokoni: I would have to look at those explanations as I do not know what the court is calling unintelligible.
Adv Bawa: But the court is calling it unintelligible and this is the basis upon which it made its cost order. So this is the reason for the cost order. In paragraph 205, it says in this court, the Public Protector has contended that the adverse findings made against her by the High Court are based on innocent errors on her part. The Public Protector’s persistent contradictions, however, cannot simply be explained away on the basis of innocent mistakes. This is not a credible explanation. The Public Protector has not been candid about meetings shared with the Presidency and the State Security Agency before she finalised the report. The Public Protector’s conduct in the High Court warranted de bonis propriis personal cost order against her because she acted in bad faith and a grossly unreasonable manner. Now the Constitutional Court finds contradictions, a lack of candid explanations and a response to the High Court that was extremely wanting and on the basis of that, it refused to set aside the High Court's cost order. Can you comment on that?
Ms Zulu-Sokoni: I still have the view that any action which causes an Ombudsman to be punished by the respondent institution because their award was to the respondent institution in her personal capacity, that is where I have the problem. If they had awarded the costs against the institution, it would still have hurt, it would have still been a mar on her professional integrity and institution.
Chairperson: I recognise Adv Mpofu.
Adv Mpofu: I do not want to interfere with this but, honestly, for the life of me, I cannot understand what this line of questioning is supposed to achieve. This is a person who's testifying about the standards and measuring this process against international standards, but for her to be taken ad nauseam over paragraphs and paragraphs of a South African judgment, which she was not commenting on the level of that judgment per se, but more on what it represents, as a case representing principles, I think it is a complete ...I do not know what this process could achieve for someone who's an outsider in this area and is here for a specific purpose. I am sure there will be witnesses where these things can be tested, including the Public Protector, and I know she's going to deal in detail with this kind of thing.
Adv Bawa: First, this witness wrote an article and she reduced the irregularities at the Constitutional Court to those of "procedural errors". She said in this article that the 15% legal fees are attributed to procedural errors. I am going to, after I read the next paragraph, ask the Zambian Public Protector...
Chairperson: You are going to ask Ms Sokoni - she is not here as the Public Protector ...
Adv Bawa: My apologies. I shall ask Ms Sokoni whether her statement that the Constitutional Court's decision to dismiss the appeal and award the 15% fees cost order against the South African Public Protector was simply based on procedural errors, based on what I am reading out.
Chairperson: All right. Let us watch the space, Adv Mpofu.
Adv Bawa: So I have one more - paragraph 207 for Adv Mpofu: “The Public Protector’s entire model of investigation was flawed. She was not honest about her engagement during the investigation. In addition, she failed to engage with the parties directly affected by her new remedial action before she published her final report. This type of conduct falls far short of the high standards required of her office.” That is a finding of dishonesty from the highest court of the land and I want to put to you that your categorisation that the majority judgment in which 15% of legal fees for "procedural errors" is not a correct encapsulation of the majority judgment. I am affording you an opportunity to comment on that.
Ms Zulu-Sokoni: I am not quarrelling with the judgment. Really. My emphasis was just on the award of 15% of personal costs. Had they awarded costs against the institution, this process of the disciplinary procedure would still have continued and she would still have to have faced up to it.
Adv Bawa: So let me pick up this issue. Do you know what happened with the cost award afterwards?
Ms Zulu-Sokoni: No, I am not privy to that information.
Adv Bawa: So you are not familiar with the fact that an organisation stepped in with a crowdfunding mechanism. Are you aware of that?
Ms Zulu-Sokoni: I am not aware of that.
Adv Bawa: As I understand it, not a cent of the cost was paid out of the Public Protector’s own pockets.
Adv Mpofu: No, really, what has that got to do with Ms Sokoni? Let us assume that happened in that particular case; there were hundreds of other awards, where the money might have come from her. This witness is about the principle, not about some specific organization and a cent or whatever.
Adv Bawa: Now can I finish the question and then if you want subject the question to scrutiny, you can. The costs were paid through a crowdfunding mechanism, organised by a third-party organisation. The reason I am raising this with you is that I want to know whether, to the extent that you indicated that a costs award against the Public Protector is an infringement on the Public Protector’s autonomy and independence, what is your comment on the receipt of funds through crowdfunding from any organisation to pay cost awards on behalf of her personally?
Ms Zulu-Sokoni: I cannot comment on that issue because I was not made aware of the information. However, the principle still stands that the award of personal costs against an Ombudsman, directly to a respondent institution is sort of like the respondent institution is punishing or getting at the Public Protector through the backdoor. If the award was made against the institution, well and good. The court made very, very scathing comments about the behaviour of the Public Protector, well and good, but it must avoid personal costs when somebody is acting in a public capacity. I do not know how much was the amount. If there was a need for crowdfunding, then it must have been a colossal amount.
Adv Bawa: It was R225 000. In fact, the legal opinion obtained on whether crowdfunding could be used cost more than the amount.
Ms Zulu-Sokoni: That is in your personal knowledge.
Adv Bawa: No, that was the evidence before the inquiry. The question I am linking to this is: is it okay for the Public Protector to take money from third parties?
Ms Zulu-Sokoni: This award was made against her personally. If I were to convert R225 000 to Zambian money, that is about 200 000, maybe about 250 000, Zambian kwacha. That is about four or five times my salary. I do not know how long it would take me to pay off that money. But all I am saying is that it was awarded to her in her personal capacity. If it was the institution that was awarded, and the institution went on a crowdfunding venture, I do not know. But it was awarded against her in her personal capacity and I do not know how she's supposed to pay the money.
Adv Bawa: So you are benchmarking it like that – that the amount is several times more than your salary? If I say that amount was about 10% of your salary, would your answer change?
Ms Zulu-Sokoni: She would have to pay for it herself. It is a small amount.
Adv Bawa: We are having these debates on generalities and principles. And so at the level of principle, should the Public Protector as an institution, albeit in a personal capacity, be taking funds from anybody for private benefit?
Ms Zulu-Sokoni: Then we should be asking the question whether the Public Protector should be asked to pay personal costs for an organisation. It goes both ways because this award was made against her in her personal capacity. And we are arguing that that should not have been.
Adv Bawa: Can you may answer my question first, as to whether, at the level of principle, a public protector in her personal capacity should be taking funds from third parties? Is it permissible under any of these principles of any of the organisations that you have relied on? Yes or no?
Ms Zulu-Sokoni: None of the principles says anything about it. But all I am saying is that the award was made against her personally in her personal capacity so she could pay personally.
Adv Bawa: So are you saying that if there was a member of the executive, hypothetically, who offered to pay her because it was in her personal capacity, it would be okay for her to take it? I am putting it at a hypothetical level because you are not answering me.
Ms Zulu-Sokoni: I find the question unfair because the Public Protector was subject to pay costs in her personal capacity. If she had not paid that money, what would have happened? If she had been incapable of paying that money, what would have happened?
Adv Bawa: We do not know that because we did not reach that point. But you are taking it a step further. Can we answer this at the level of principle? Do you agree with the notion that the Public Protector, in her personal capacity, does not infringe on the “independence and autonomy of the Public Protector” by taking funds from a third party in her personal capacity?
Ms Zulu-Sokoni: She was charged in her personal capacity. She paid the money. She was charged in her personal capacity. Was she expected to get the money from the institution? She was charged in her personal capacity, so I do not know. In fact, let me say this, maybe to answer the question properly, I do not know what terms and conditions were put in for her to pay the money.
Adv Bawa: So let me give you a different example, a more innocuous example. The Public Protector’s car breaks down; it is her personal transport to take a child to school and she cannot pay for the car. But because it is not quite the Public Protector, it is in her personal capacity, she can then take funds from somebody who perhaps complained to the Public Protector’s Office, who steps forward and says, “I am doing this for you in your personal capacity. It is okay for you to take the money from me.”
Ms Zulu-Sokoni: Okay, now you have clarified the question. Thank you for clarifying that. No Ombudsman can engage in any commercial transaction with either a complainant, a respondent or a member of the public. This is why, in terms of the conditions of an Ombudsman - I cannot remember which of the standards states that - but in our legislation in Zambia, the previous Commission for Investigations Act stated that the Ombudsman cannot engage in any business or other gainful employment, when they are employed as an Ombudsman.
Adv Bawa: I said nothing about a commercial transaction. I gave you a possible hypothetical situation but let me rephrase the question so that we are on the same page. Let us assume I am the Public Protector, and I need to have my car fixed, but I do not have the money. Adv Mayosi offers to give me the money. What does that do to my independence or the perception? Let us say six months later, Adv Mayosi lodges a complaint at the Public Protector’s Office. Is there not a perception that by taking that money in the first place in my personal capacity, I am opening my door to all kinds of vulnerabilities? As a Public Protector, whether it is personally or professionally, I should not be taking the money. I am putting it hypothetically.
Ms Zulu-Sokoni: I can answer the question.
Chairperson: Just hold, Adv Mpofu is addressing the Chairperson. I do not expect any of you to intervene on behalf of the Chairperson. Adv Mpofu.
Adv Mpofu: Chairperson, firstly, this is completely inappropriate. I am just letting it go because I am in a good mood. Because this is, firstly, a cross-examination and I said that she should not have a cross-examination. She should be asking questions of clarity, which is all that should happen. Once a question is answered, it is answered. And that is it. You cannot be spending two hours trying to bring it this way and that way. But secondly, so what? Let us assume that she took money from a million people and went shop to shop taking money. Is that one of the charges? What does that have to do with what we are dealing with here?
Chairperson: Thank you. Adv Bawa.
Adv Bawa: We had extensive evidence on autonomy and independence, and the question of the role of the Public Protector in the context of independence and autonomy. I want to come to two further paragraphs in the Constitutional Court where they deal with why they gave the Public Protector the cost order. What I am trying to explore with the witness is where the line is drawn against independence and autonomy, and going about it by using the example of a personal cost order against the Public Protector and saying, when do you draw the line between the personal and the public?
Ms Zulu-Sokoni: I am glad that you clarified further to talk about a complainant and the situation that you have described. So it will not be appropriate for an Ombudsman to go seeking funding from, let us say members of the public generally. However, we mentioned that the protections around the Office of the Ombudsman must be entrenched so do not put the Ombudsman in a situation where they are made vulnerable. When you start awarding personal costs against a person, you make them vulnerable to being compromised. This is one of the issues that we talk about: the Ombudsman can be compromised if he's put in a desperate situation. So the principle we should state here is that there should be no reason to award personal costs against an ombudsman where they are paying the costs for an institution because that institution goes out and gets very, very expensive lawyers. At the end of the day, the costs that will come out of that will be really, really colossal. So the ombudsman should not be put in such a compromised situation. That is what I can state.
Adv Bawa: I am going to take you to two paragraphs in the Constitutional Court judgment. Paragraph 153: "The purpose of a personal costs order against a public official is to vindicate the Constitution. These orders are not inconsistent with the Constitution; they are required for its protection because public officials who flout their constitutional obligations must be held to account. And when their defiance of their constitutional obligations is egregious, it is they who should pay the costs of the litigation brought against them, and not the taxpayer." You will agree that the institution and its money come out of the taxpayers' pocket, correct?
Ms Zulu-Sokoni: Yes.
Adv Bawa: The second paragraph is: "Despite this clear authority that personal costs orders are constitutional and necessary in order to hold public officials to account when they fail, for example, to fulfil their constitutional obligations, the Public Protector argues for an exception in her case. There is no merit in the Public Protector’s contention that the independence of her office and proper performance of her functions demand that she should be exempted from the threat of being mulcted with adverse personal costs orders. On the contrary, personal costs orders constitute an essential, constitutionally infused mechanism to ensure that the Public Protector acts in good faith and in accordance with the law and the Constitution." And lastly, "The fears that the Public Protector has about the impact of a personal costs order on the institution of the Public Protector are unwarranted. Personal costs orders are not granted against public officials who conduct themselves appropriately. They are granted when public officials fall egregiously short of what is required of them. There can be no fear or danger of a personal cost award where a public official acts in accordance with the standard of conduct required by the law and the Constitution." Now, on your version, our courts can never hold such a public official to account by issuing some form of accountability by issuing a personal cost award. Am I correct?
Ms Zulu-Sokoni: I have no argument with the reasoning of the courts. I am not arguing with the reasoning of the courts but I am just stating that they could have found another way to ensure that the Public Protector was punished. As I have said, we are sitting here right now, because there is a need to conduct a disciplinary proceeding. So there are many ways in which it could have been done without having to compromise the integrity of the Office.
Adv Bawa: Well, are you suggesting that the personal cost order compromised the integrity of the Office, or behaviour of which the court complained compromised the integrity of the Office? What happened first?
Ms Zulu-Sokoni: Because you asked me a question about crowdfunding, I think we are still talking about crowdfunding. So I am saying that in a situation where a public official ends up being compromised directly because of an order from a court, I am saying there could have been another way in which it could have been done. That is all. But otherwise I have no problem with the reasoning of the court. The reasoning of the court is very sound.
Adv Bawa: That is the reasoning of the majority judgment, which you did not prefer; you preferred the minority judgment.
Ms Zulu-Sokoni: Yes. And the reason was because of the award of costs as I explained.
Adv Bawa: So if I take you to the principles we referred to - let us go to the UN General Assembly position first. These are principles.
Ms Zulu-Sokoni: Yes. They are not binding. They are of persuasive value.
Adv Bawa: Right. Because yesterday the suggestion was made that the UN General Assembly Resolution was binding on South Africa, but that is not correct. General Assembly resolutions are not binding.
Ms Zulu-Sokoni: They are persuasive. Right.
Adv Bawa: So that is not binding. The OR Tambo principles which you refer to also are not binding on the South African state, and the IOI principles, none of them are binding on the South African state. None of them is, not even the Venice Principles. I am not disagreeing with you on independence, autonomy, etc. I am just saying that at the level of principle, they are not. Would you agree that none of them is binding on the South African state?
Ms Zulu-Sokoni: No, none of them is binding.
Adv Bawa: What is binding are the South African judgments, the Constitution and the laws of the country. Correct?
Ms Zulu-Sokoni: That is correct.
Adv Bawa: Now we have got that out of the way, let us deal with this. The people largely involved in putting the OR Tambo principles, the submissions made to the UN, and the Venice Principles together are the Ombudsman and the Public Protectors from around the world. Would you agree?
Ms Zulu-Sokoni: Yes, that is correct.
Adv Bawa: So it is done from the perception of looking after the interests of and to protect Public Protectors and Ombudsman?
Ms Zulu-Sokoni: It is not just to protect their interests; it is to ensure that they are protected in their work and that members of the public also get the services that they deserve.
Adv Bawa: I do not know if you have had an opportunity to read Mr Ebrahim's statements, but he does not take issue with any of the principles you relied on - independence, objectivity, transparency, fairness - being part of what the Public Protector should adhere to. Would you agree with that?
Ms Zulu-Sokoni: I cannot recall the content of his evidence.
Adv Bawa: Now, if you look specifically at the OR Tambo Declaration and I must admit, at some level, l battled to follow my colleague, and I was not quite sure precisely what you were agreeing with. So let me see if I can put it in a way that I can understand. Right? You were taken through the principles or some of them. A statement was made, either before the reference was made to the principle, or after, that South Africa did not comply with the principle and then a question was put to you. Sometimes you answered the question directly and sometimes you answered the question on the level of generality. What I am not clear on is whether, as you are sitting there, because it is not apparent from your statement, you are saying to this Committee, that this process is inconsistent - and assume that all the procedural stuff has been complied with in terms of the law, because we have had numerous code challenges and we are still here and this process too.
Adv Mpofu: Now…
Adv Bawa: Now, hold on, I can finish my question, please. After the subjective connotations put to the process and put to you, are you saying as you sitting there that this process does not comply with those minimum standards?
Adv Mpofu: I prefer.
Chairperson: Just hold Adv Bawa. Adv Mpofu.
Adv Mpofu: What kind of question is that? How can you ask a question that says: Are you saying that this process does not comply, but assume that it complies? Assume that all the procedural things have been done. Then obviously, the answer is, if you assume that it complies, then it complies. What kind of question is that?
Chairperson: Okay, just give me a second.
Ms Zulu-Sokoni: This process procedure is compliant with the laws of the Republic of South Africa and that is what is important. These principles, as we have already stated, and I have already answered the question, these principles are not binding; they are merely persuasive.
Adv Bawa: And these persuasive principles agree that on misconduct, incapacity and questions of competence, they constitute just cause if a country seeks to have a Public Protector removed, correct?
Ms Zulu-Sokoni: Yes, that is correct.
Adv Bawa: Can I ask, at the level of generality, regarding investigations at the Public Protector’s Office in terms of your minimum standards with which you must comply? As I understand it, they either have a complainant or on their own initiative, investigate a complaint.
Ms Zulu-Sokoni: That is correct.
Adv Bawa: And there must be parameters that they have to observe within the investigation of a complaint and they must look at all aspects of it. They cannot ignore evidence or choose to not explore any avenues within that investigation.
Ms Zulu-Sokoni: That depends on the nature of the investigation, but so long as the general principles are followed.
Adv Bawa: And in the course of this investigation that the Public Protector undertakes, if new issues come to light, which fall within the mandate of the Public Protector, should those issues be ignored? Or should they be considered? Or they shouldn't be considered? And if there are implicated parties, and new issues come to the fore, should those new issues be brought to the attention of the implicated parties? Or should the report just be issued?
Ms Zulu-Sokoni: It depends on whether we are talking about public service entities.
Adv Bawa: Yes. Or private individuals. Either way, if you come up with new evidence while you are doing an investigation, assuming you are investigating A, B and C and now you expand your investigation to include D and F, and it implicates X bank and Mr Y. Should you be giving them an opportunity to deal with the recommendations?
Ms Zulu-Sokoni: Okay. According to the way we work as Ombudsman officers, I will speak about my example. I deal with public service entities and I will only go as far as informing the public service entities and the private individuals who have complained regarding the progress of the investigation. If there is a need to include anybody, it must be a public service entity. With private service organizations, we only go to the regulator and say that there is an issue that touches on this entity, can you go out and investigate this particular matter?
Adv Bawa: And if it is a private individual, do you make that finding against a private individual or would you refer it to an appropriate body?
Ms Zulu-Sokoni: Yes, we could refer the matter, for instance, to the Human Rights Commission, if it is a human rights case, or to the Anti-Corruption Commission if we think there is corruption.
Adv Bawa: But let us assume in South Africa, you have the powers to make those findings against individual people, you would expect him to have been given an opportunity to comment. Correct?
Ms Zulu-Sokoni: Yes.
Adv Bawa: If I take you to page 15 of your AOMA statement on page 232. You say that the Office has the functions of enforcing the code of conduct for public officers and combating maladministration and corruption. And you are referring to the Office in South Africa. So I was trying to work out what conduct of code of conduct you are referring to. Was it the Public Service Code Of Conduct?
Ms Zulu-Sokoni: Yes, this must have been lifted from the legislation.
Adv Bawa: And to take you to this issue of what is binding and what is not binding. The Nkandla judgment has been repeatedly upheld as the authority that says Public Protector decisions are binding. But are you aware that the Constitutional Court said that the Public Protector’s remedial action is not always binding, but that whether it is binding or not, depends on the circumstances of the case? That is actually what the judgment is in paragraph 73.
Ms Zulu-Sokoni: So who decides whether it is binding or not?
Adv Bawa: I want to move to this question on South African judgments and what was termed as judicial harassment. Of all the court judgments that have been filed against the Office of the Public Protector, I think three or four have made personal cost orders against the Public Protector in her personal capacity. The overwhelming number of judgments are found against the Office of the Public Protector for a variety of reasons which, because you are not steeped in South African law, I am not going to take you to. Do you regard under the caveat of judicial harassment, findings by courts of non-compliance on the part of the Office of the Public Protector?
Ms Zulu-Sokoni: No, as I said, having the reports of the Public Protector reviewed is part of the quality control of the work of the Ombudsman.
Adv Bawa: And have you scrutinised all the judgments in respect of which there were personal costs orders made against the Public Protector? Or are you only objecting to it at the level of principle? As a matter of principle, there should be no personal cost orders against the Public Protector, irrespective of what the Public Protector does?
Ms Zulu-Sokoni: As I stated earlier, the Public Protector or the Ombudsman investigates the executive and it would send a wrong message if the Ombudsman has to pay personal costs for respondent institutions. It would just open up a flurry of such orders and maybe not only just in South Africa. So I just think that it is a power that has to be used with care, especially when it concerns the office of the Ombudsman because of the particular mandate that it has to investigate the executive.
Adv Bawa: If I break down my question; let us take the first part. Have you scrutinised all the judgments with a personal cost order against the Public Protector?
Ms Zulu-Sokoni: No, I have not scrutinised them.
Adv Bawa: If I now listen to your answer, you are not saying as an absolute, a court should not issue a personal costs order against the Public Protector? You are cautioning against the use of that as a tool. Am I correct?
Ms Zulu-Sokoni: That is correct.
Adv Bawa: You accept that, and I understood you to say, “I do not know of an organ of state when it puts its budget to Parliament or to National Treasury and gets back the funds, is going to say that you gave us too much money, or you have given us enough money – we do agree with that.” As an African country, there are always competing demands that have to be met.
Ms Zulu-Sokoni: That is correct.
Adv Bawa: So your minimum standard says you must have a budget and your budget must allow you to be efficient and it must allow you to carry out your tasks. The fact that you are given a budget that does not cover everything you want to do does not necessarily amount to an infringement of your independence and autonomy. Would you agree with that?
Ms Zulu-Sokoni: Yes, Ombudsman offices operate all over the world, and they are some of the most underfunded offices. It is a constant cry that Ombudsman offices are not well funded. So in Africa, I would think that perhaps Public Protector South Africa is one of the best-funded, if we have to compare it with other jurisdictions.
Adv Bawa: In the 25 years, that Public Protector SA has been in existence, annually Parliament has increased funding to it. Not only has there been an increase in funding, but there is also been an increase in staffing. This is not a government that has taken money away from the Public Protector because of findings made against an executive, would you agree?
Ms Zulu-Sokoni: Definitely. We are aware as AOMA and even as IOI, that the South African Office of the Public Protector is one of the best-funded in Africa, if not the best.
Adv Bawa: So when Public Protector officials come and tell this Committee that there are funding constraints within the organization, it is not a simple question of how much money is allocated to the Public Protector, but what that money is spent on, would you agree? On a level of principle, it is not a yes or no answer. Would you agree? That is what this Committee must consider.
Ms Zulu-Sokoni: Wow. I really cannot comment either way. So sorry.
Adv Mpofu: About this…
Adv Bawa: We are off this. If she cannot answer, she cannot answer. I will take us to the provisions of the Constitution about how - it is section 80 of the Constitution - other organs of state must support the Office of the Public Protector. Institutions are independent and subject only to the Constitution and the law. They must be impartial and exercise the powers to perform their functions. And then there is a statement that says: Other organs of state, through other measures, must assess and protect these institutions to ensure independence, impartial dignity and effectiveness.
Chairperson: Adv Bawa, we need to follow.
Adv Bawa: We assume our legislature knows the provisions of the Constitution that have been given to the witness, but it is on the screen now.
Adv Bawa: So when we say no person or organ of state may interfere with the functioning of these institutions, and that applies not only to the Public Protector but to the Human Rights Commission, to the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Gender Equality, Auditor-General and Electoral Commission, you see that? Those are our Chapter Nine institutions. And none of them can quite fulfil anything close to a judicial function. Would you agree?
Ms Zulu-Sokoni: Yes.
Adv Bawa: Right. Section 165 of the Constitution, which deals with our courts, has a subsection four which says organs of state through legislative and other measures must assess and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. Would you agree that that obligation rests on the Public Protector as well?
Ms Zulu-Sokoni: Yes.
Adv Bawa: And nothing, even on your minimum standards, would digress from the position that the Public Protector must respect the judgments and orders of the court?
Ms Zulu-Sokoni: Yes, the Public Protector must respect the judgments of the courts. But the Office still has the right to appeal, where it needs to appeal.
Adv Bawa: Should the Office of the Public Protector or the Public Protector be involved in, for example, third parties writing media articles that vilify judges? For example, I am a third party and a judgment is handed down that is very critical of the Public Protector so the Public Protector, under the guise of a third party… Let me rephrase. Mr X is going to draft an article …
Chairperson: Pause, please. Adv Mpofu.
Adv Mpofu: Chairperson, what is this in aid of? Firstly, no such thing was raised in question. And I do not know if we are now going to traverse all charges, even those that are completely not related to this witness who is not from South Africa and put all sorts of propositions about all the 20 charges. That is not the purpose of this witness and just a complete waste of time. And it certainly does not arise from anything that was raised with this witness, quite apart from the fact that this whole thing is just not allowed, because it is cross-examination, which she knows she's not entitled to do, but I do not want to deal with that now. I think I will deal with it when we finish this witness because if this trend is going to continue, we are going to have a problem, but I just do not want to make a meal of it now. Just the specific question - what purpose does it serve?
Chairperson: Adv Bawa?
Adv Bawa: I have accepted the mandate that allows me to ask the witness any question. It is Adv Mpofu who put the question to the witness during direct examination and wants to show the contrast between section 181 of the Public Protector Act and section 165 on the Courts. There is a particular relationship between the Public Protector and the judges but there was a suggestion made of judicial harassment, because of judgments handed down to the Public Protector. What I am testing is, what is the level of reciprocity between the Public Protector and the very judiciary that has been accused of harassment. What is not expected of a Public Protector acting independently and autonomously is to be a party to vilifying the judiciary, at the level of principle. We can put that for different reasons but we have had evidence before this Committee as to what has been going on behind the scenes and it goes to the complaint that is before this Committee, a motion which this witness has not been taken to under direct as to how the resources of the institution are used, and whether that is acceptable.
Chairperson: Adv Mpofu, I think you want to respond. Proceed.
Adv Mpofu: I accept that there was such evidence. It is not where I am. I am asking whether that question should be put to this particular witness i.e. some theoretical things that were raised by Mr van der Merwe. Are we going to go down that path of testing every proposition that was put by all the 18 witnesses to date? That is the point I am making. I am not saying that the evidence was not led but are we now going to go through the path of testing everything that was ever said in this Committee with this witness whose only job was to tell us about the higher level of standards of international conduct?
Adv Bawa: When it suited Adv Mpofu, he relied on the evidence of witnesses. When it came to HR matters, or when it was a question of whether something should be in the Labour Court, then he did not have a difficulty. I am not referring to the evidence of 18 witnesses; I want to put two or three issues of principle to the witness as to what is expected of a Public Protector.
Adv Mpofu: In fairness, let us give an example. I would have said to the witness, for example, if this happens in that situation, but if I am going to sit here and drill down the entire evidence of, let us say, Mr Kekana with this witness, how is it going to aid us? It is not necessary to go into minutiae.
Chairperson: Adv Bawa, can we proceed?
Adv Bawa: I was putting this to you, at a level of generality. A judgment comes out and it is scathing of a Public Protector and there are third parties who are aggrieved by the judges making such conclusions and findings against the Public Protector. As is their right, they produce articles in the media, on social media, etc. in which they vilify these judges. Should the Public Protector, behind the scenes, be a party to such vilification?
Ms Zulu-Sokoni: I will state what I stated before, the Office of the Ombudsman is not supposed to have any commercial transactions, contacts or contracts with people where he or she is getting a benefit, whether it is monetary, or any other type of benefit. It is not allowed.
Adv Bawa: As a follow-on to that, would you say that the funds of the institution should also not be used for purposes which have not followed the mandate of the institution?
Ms Zulu-Sokoni: That is correct.
Adv Bawa: Then we come to the security of tenure. The South Africa Public Protector has security of tenure. Correct?
Ms Zulu-Sokoni: Yes.
Adv Bawa: So when you have this debate about security of tenure, it is not applicable in South Africa because there is security of tenure.
Ms Zulu-Sokoni: There is security of tenure in South Africa. The Constitution is very clear.
Adv Bawa: Whether it is seven years or 10 years, it matters not.
Ms Zulu-Sokoni: So long as a ‘term certain,’ even if it is five years.
Adv Bawa: So the minimum standards in respect of endeavouring to protect the Public Protector’s independence and autonomy have been adhered to in South Africa.
Ms Zulu-Sokoni: That is why the Office of the Public Protector in South Africa was heading the drafting of the OR Tambo Declaration. It was because they were coming from a standpoint where they were already enjoying those benefits, and wanted to ensure that all of Africa enjoys similar benefits.
Adv Bawa: So when you ask questions as to whether the system is fair or not fair, it does not mean it is non-compliant with the provisions of independence or autonomy. That is just your preference of which system you would prefer to see in place.
Ms Zulu-Sokoni: Yes, yes, definitely.
Adv Mpofu: Again, that is a deliberately misleading question. The questions about fairness and unfairness were specific questions about, for example, whether a complainant is called or not, not some theoretical thing about whether the law says there must be fairness. Of course, the law says there must be fairness. The question is whether there is fairness now on the ground, not whether it is on a piece of paper.
Chairperson: Adv Bawa.
Adv Bawa: Thank you. I did not understand the position. One of the propositions put to you was whether you regard the system in which decisions are binding to be a fairer system than when the decisions are only a recommendation. You answered that you thought the system of recommendations was fairer. Do you recall that?
Ms Zulu-Sokoni: Yes. I am so glad that you have qualified it yourself because the South African legislation is compliant with all the principles, but whenever there is such a decision, sometimes in the application, there can be problems and there can be mistakes, but otherwise on the face of it, South African law is compliant.
Adv Bawa: So that I can understand this. Do you understand this to be a Committee that is seized with making a decision as to whether the Public Protector should be removed or not?
Ms Zulu-Sokoni: Yes, yes.
You have testified that the system complies with the prescripts of constitutional law and it is in accordance with the law that this process is taking place.
Ms Zulu-Sokoni: Exactly.
Adv Bawa: You would rather not have had the country reach this point because it is not good for Public Protectors, or the institution.
Ms Zulu-Sokoni : Yes. Insofar as we are trying to grow ombudsmanship in Africa and we are trying to entrench the principles of the institution of the Ombudsman in Africa, so whatever we do, especially the countries that are leading in ombudsmanship, we have to ensure that we are taking care of the other countries that are more vulnerable, that do not have very strong Ombudsman institutions. So that is in the spirit in which I gave my testimony here.
Adv Bawa: And, in the course of your giving evidence, certain examples were put to you. Let me give one example. The oversight of a Public Protector in South Africa is the legislature, the Parliament and you are in agreement, that is best practice.
Ms Zulu-Sokoni: Yes, it is best practice. But as I said, you should always look at how we are implementing; otherwise, it is the best practice.
Adv Bawa: But you have not been privy to all the evidence before this inquiry so that you can pass an opinion on the process itself. Would you feel confident enough to pass an opinion on the process?
Ms Zulu-Sokoni: I have not passed an opinion on the process simply because I believe that it is ongoing. We have not yet come to the end of it, so it will be precipitous for me to say, this is wrong and this is right.
Adv Bawa: Let me take one example from a different angle. Parliament is made up of elected members and those elected members serve the public. Would you agree with that?
Ms Zulu-Sokoni: Yes.
Adv Bawa: Those elected members must fulfill the constitutional obligations of Parliament, in the performance of their functions, and in doing so they must act in a constitutional manner. If you are a Member of Parliament, and you belong to a particular political party, and your husband is the chief whip of that party, and that party lodges the complaint to Parliament. As the wife, you are also a Member of Parliament and it was put to you that it is a conflict of interest if you serve on this Committee simply because your husband is the chief whip of that political party and, on behalf of that political party, submitted the complaint to Parliament.
Ms Zulu-Sokoni: Is the husband also serving on the Committee?
Adv Bawa: No, only one of the parties is serving.
Ms Zulu-Sokoni: Exactly, it is a conflict of interest. That partner being on the committee must declare his interest
Adv Bawa: Let us assume it is known to every Member of Parliament, that the two of them are married and it is assumed, to make this more complicated, that they are only two members of that political party and so only one of them can serve on this Committee, according to your conflict of interest, that political party will not be represented on this Committee.
Ms Zulu-Sokoni: It would still be a conflict of interest. If I were that person, I would allow another person to represent me or vote in my stead. So whichever way you put it, it is still a conflict.
Adv Bawa: I want to ask you why you say it is a conflict of interest.
Adv Mpofu: Okay, I am saying this for the last time. Even under cross-examination, once the question is answered it is answered. It cannot go on like this. Especially if you are an evidence leader, you are not representing a party, you are just an evidence leader. The witness even says if you put it in a thousand ways, it will still be a conflict of interest. She is being argumentative with the witness. She has answered the question. That is her view. When we argue the case later, my learned friend might say that view is wrong for whatever reasons and bring authorities whatever, but they cannot squeeze a different answer from the witness on this.
Chairperson: In fairness, Adv Mpofu, the question has been put to the witness and she has emphatically responded to say, in her own view and understanding, that would constitute a conflict of interest. She's done that. There is a second question being asked: why does she think it is so? I am saying let us allow that to proceed but I get your point.
Adv Bawa: Sorry. I accept your view.
Adv Mpofu: I am going to object. I just want to explain what I am saying. All I am saying is to argue with the witness because even asking why is challenging the question. I am just saying that is not the role of an evidence leader, but it is a bigger debate and my learned friend knows that she's not supposed to do it.
Adv Bawa: I am not challenging your answer. I accept that you have the view that there is a conflict of interest. So let us get that out of the way. I think it would assist the Committee if they understood what was the reasoning that you understood it to be a conflict of interest. That is why I asked.
Ms Zulu-Sokoni: I think if there is a complainant, for example, in a criminal case and you have a security system, for argument's sake, it is a jury system, and the husband is in the jury, he would automatically be disqualified because the other party would not feel that they would get fairness. This Committee is supposed to be neutral; they are hearing the evidence and they are trying to make a decision, whether they should send this Public Protector for impeachment or not. So there shouldn't be anybody sitting on this committee who has already made up their minds. So if this person is the husband, and the complainant is out there, it means that from the start, we already know that when it comes to voting time, that person’s vote is already au fait complete. So it is a very straightforward matter.
Adv Bawa: So that I can understand, that is based on a presupposition that husbands and wives always agree.
Ms Zulu-Sokoni: It is not a presupposition. Even when you are bidding for a contract and the person who is bidding is a husband, and the wife is in the bidding, that person has to declare an interest. It is straightforward.
Adv Bawa: You raise conditions of service and the proposition was put to you that there are no conditions of service. What do you understand conditions of service to be?
Ms Zulu-Sokoni: The remuneration, the pension and also the perks that accompany the position. Normally, these will be laid out in a contract to say what one shall be entitled to. So it is the entire package and the separation package.
Adv Bawa: And it is important for the independence and autonomy of a Public Protector that the Public Protector is aware of what that Public Protector is going to earn, what the pension is going to be, what leave she is entitled to, the term of office remuneration and so on.
Ms Zulu-Sokoni: It should be certain. I was in a situation myself when I came into office, where I did not know what my terms and conditions of service were, so one day I was given this then that would be taken away and then tomorrow, I was told I was entitled to something else and then another person says you are not entitled. That was because the terms and conditions of service were not written down. Of course, the terms and conditions of service are not supposed to be whittled away, which is sometimes the tendency. It is just better for all the terms and conditions of service to be put in a contract.
Adv Bawa: So that is different from a job card as to how you are going to tackle the job?
Ms Zulu-Sokoni: I beg your pardon.
Adv Bawa: Conditions of service govern your employment. If I am employed as a typist, I am going to be told that I must be at the office between nine to five, and I must be able to do 10 letters a day. That is a job card as opposed to conditions of service. Would you agree?
Ms Zulu-Sokoni: Yes but I am referring to the terms and conditions of service.
Adv Bawa: You then were asked about the possible threats; the 15 IOI possible threats and the proposition was put to you that South Africa has infringed all of them? I did not hear your answer in agreement that South Africa has infringed on all 15 of them and so I just wanted to clarify that.
Ms Zulu-Sokoni: Speaking on behalf of AOMA, I do not think we all sat down to look at the threats to the institution and said each is a threat existent in South Africa. We have not done that exercise. We came here with an open mind to try and see if we could add any value to the process.
Adv Mpofu: Now, let us just say, in fairness, that there is a reason why Adv Bawa did not hear the witness saying that and that is because nobody asked her to say that. All that was done was to take the witness to an example to demonstrate it. It was said that when we argue, we will be using those examples to say that all 15 are not met. We are not ascribing that to the witness.
Chairperson: Thank you. Adv Bawa.
Adv Bawa: I can move on. That is fine. Okay. There is a statement in paragraph 40, where you say that the South African courts feel threatened by the powers of the Public Protector. It is point 40 of the statement which is on page 239: It is evident that the issuing of binding decisions makes the Ombudsman amenable to review of its decisions or the courts of law. The courts also seem to feel threatened by the judicial powers of the Ombudsman and there is always a temptation by one of the three arms of government to trim down the powers of the Ombudsman, as evidenced in Zambia and South Africa. Can I maybe ask the first question arising from that? Do you accept that in South Africa the Public Protector does not have judicial powers?
Ms Zulu-Sokoni: We have talked about the three arms of government each ceding something to the institution of the Ombudsman for it to work effectively. So for the judiciary, they give the powers to issue orders during the process of investigation and I think those provisions generate a generic across all jurisdictions. The Ombudsman must have the powers of a judge during an investigation to issue orders to uplift documents, but at the point where the reports are being issued, the report then only should have the force of a recommendation. When the Ombudsman is given binding powers, the Ombudsman can make mistakes or overstep its boundaries, as we have been discussing, such as the issue of the Reserve Bank of South Africa. The courts will take issue with that and they will castigate an errant Ombudsman for going beyond his or her powers. This paragraph was written in that spirit. It is much better, I think, for the Ombudsman to exercise only powers of recommendation, as they will not come into conflict with the judiciary. I think that is the only time when the Ombudsman comes into conflict with the judiciary - when they are exercising binding powers.
Adv Bawa: I was interested in the statement that the court feels threatened by the Public Protector and I wondered which judgments of the South African courts you think reflect that the courts felt threatened.
Ms Zulu-Sokoni: I think if you read the statement, it is a general statement. I have said, however, it is evident that issuing binding decisions makes the ombudsman amenable to review of its decisions by the courts of law. The courts also seem to feel threatened by the judicial powers of the Ombudsman and there is always a temptation by any one of the three arms of government, if you give binding powers to the Ombudsman to trim down the powers of the Ombudsman, as evidenced by the matters in Zambia and South Africa. We are talking about trimming down the powers. In their interpretation, they said the Ombudsman does not have judicial powers, and the same was said in the South African judgment, but it would be much better if they give powers of recommendation to these Offices so we are not saying that the Ombudsman should have judicial powers; we are saying to give respect to the courts, let the courts exercise their own powers, and let the Ombudsman just be given the power of recommendation. This is not meant as a criticism per se; it is meant to make a point that the Office of the Ombudsman should only exercise the power of recommendation, not binding powers. So we are setting the scenario to say when you give the Office of the Ombudsman binding powers, these conflicts may arise between the office of the Ombudsman and the courts.
Adv Bawa: So as I understand, you are saying this at a level of generality. You are not specifically referring to any particular judge’s recordings.
Ms Zulu-Sokoni: No, no. This is a general paragraph.
Adv Bawa: I want to come to the question of civil servants. Your concern stems from the fact that those employed at the Office of the Public Protector should be selected by the Public Protector, not the executive. Do I understand that correctly?
Ms Zulu-Sokoni: Well, that is, according to the standards. The Ombudsman should employ his own members of staff; they should not be drawn from the executive but in its practical implementation, it becomes very, very difficult. I can say that for sure because even for the Office of the Public Protector, Zambia, all the employees are drawn from the executive. I do not know about the Western world, but in most African countries, the employees are drawn from the executive,
Adv Bawa: But if the Public Protector has its own human resource division and manages the employment of persons in its employ, this criticism does not arise. Even though they become part of the salary of the public service, the actual feet on the ground are selected by the institution itself. So the question of your criticism of a civil service being selected by the executive does not apply if it is the Office of the Public Protector that chooses its own employees?
Ms Zulu-Sokoni: If that is the situation in South Africa, then it is a more independent office than most in Africa.
Adv Bawa: So that is good. Now, if you have an independent office, and you are entitled, with your own HR department to employ people, to put up advertisements, to select from the public, to decide who you are going to employ, should you be seconding employees from government departments?
Ms Zulu-Sokoni: I think it depends on the agreement between the government and that Ombudsman Office because I know for a fact from our legislation, we are allowed to employ but we are getting employees from the Public Service simply because we do not have the budget lines to employ these people and they can give us those employees and they have specific employee numbers.
Adv Bawa: But at the level of generality, ideally, a Public Protector’s Office should be employing their own employees. And they should not be co-opting from government even if they are allowed to do that, looking at your standards.
Ms Zulu-Sokoni: Yes, looking at the standards, we are not supposed to.
Adv Bawa: And should they be turning to government departments for purposes of deciding what should be contained in the report or should they be compiling the report independently?
Ms Zulu-Sokoni: The reports are supposed to be compiled independently of any other government institution. But I will say the Public Protector may use experts or assessors when there is a very specific technical issue that is not within the specific knowledge of the Ombudsman.
Chairperson: We are in silence so we are going to take a 15-minute break.
Chairperson: Let us resume our session. Adv Bawa.
Adv Bawa: Ms Sokoni, have you had an opportunity to consider the motion before this Committee and know that it is called charges? They are the allegations that have been made against the Public Protector. Have you not looked at it at all?
Ms Zulu-Sokoni: I did look at them back home, but if you want me to direct my attention to any one of them…
Adv Bawa: You have told this Committee that you are not steeped in South African law and you are not steeped in South African constitutional law but you have done a cursory reading of the South African judgments. Is that a fair summary? So to the extent that some of these charges are premised on cases of judgments and the evidence, have you had regard for them in the context of the charges?
Ms Zulu-Sokoni: No, not in the context of the charges.
Adv Bawa: So you would not be able to assist the Committee in respect of this at all? That is not why you came to give evidence.
Ms Zulu-Sokoni: No, I would not be able to answer.
Adv Bawa: There are a number of charges that are steeped in court judgments but I want to put it to you at the level of generality: if in the performance of the task, this Committee does find, on the basis of the evidence before it, that there is misconduct or incompetence would a recommendation to Parliament be an infringement of the independence and autonomy of the Office of the Public Protector?
Ms Zulu-Sokoni: According to the provisions of South African law and the Constitution of South Africa, all procedures have been followed, as you stated to me, so this Committee is a Committee of Parliament and I do not see any reason, at the end of the day, whatever findings you make, should not comply with your very laws and Constitution.
Adv Bawa: You are not able to assess this Committee in respect of the details or the subject matter on which this Committee is seeking to impeach or is considering the impeachment process. Correct?
Ms Zulu-Sokoni: I am not able to do that. Perhaps in a way, it should help the Committee because I feel that this is a subject matter in which the Committee Members themselves are experts, being Members of Parliament and their procedures. I would not be the best person to say this procedure is correct or wrong. I have come to speak to the principles of Ombudsmanship, to ensure if there is any way that these principles can be considered, it would be helpful that they be considered.
Adv Bawa: Thank you. We appreciate your assistance.
Questions by Members
Chairperson: I now invite Members to interact with Miss Sokoni.
Chairperson: Thank you, Dr M Gondwe (DA).
Dr Gondwe: Ms Sokoni, you have admitted in your evidence before this Committee that you are not an expert in the removal process of an Ombudsman and neither are you an expert in South African law or South African constitutional law. I know Adv Bawa asked you this question but perhaps not as directly as I am asking. What exactly is the relevance of your evidence to the work of this Committee? Mr Ebrahim, who appeared before this Committee earlier, admitted that he was not an expert in the removal process of a Public Protector, as this is very much a novel process for our country, but at least he has knowledge of South African law and the South African Constitution. He is an expert in constitutional development and has been engaged in the development and implementation of our country's Constitution. You do not have that specific knowledge and experience, as far as our law is concerned. So what exactly is the relevance of your evidence to the work of this Committee?
Chairperson: Ms Sokoni, respond as they ask the questions. We will take them one by one and go to the next.
Ms Zulu-Sokoni: When we applied as AOMA to be given a hearing before this august Committee, we had informed the Committee that we wanted to address the principles and the national standards of an Ombudsman to help the Committee understand the context in which the Ombudsman stands, not just in a national but also an international context. As to the relevance of the evidence that I have submitted, it'll be up to this august Committee to decide whether the evidence is relevant, whether it can be used or cannot be used, but for the sake of building up on knowledge of the Ombudsman institution, both within South Africa and out of South Africa. I again reiterate my thanks and gratitude that this Committee allowed the African Ombudsman and Mediators Association to address issues relating to international standards of the Ombudsman Institution.
Dr Gondwe: You stated in your evidence-in-chief, that the legislature and judiciary should not be used as enforcement mechanisms on behalf of the executive. So is it your evidence before this Committee that this process i.e. this inquiry, is an enforcement mechanism on behalf of the executive, and is not an exercise in accountability, or at least in holding the Public Protector accountable? Parliament is the very institution that recommended the appointment of Adv Mkhwebane as the country's Public Protector, so surely we must be able to hold her accountable?
Ms Zulu-Sokoni: Yes. According to the South African system, according to your laws, it is the legislature that is supposed to hold the Ombudsman accountable and I think when we were giving the general outline of an Ombudsman institution, we did state that the ideal model for an Ombudsman institution is the classical model, which states that the Ombudsman should be accountable to the legislature. So unless I have not answered your question?
Dr Gondwe: Do you view this inquiry as an enforcement mechanism on the behalf of the executive, because you indicated that the legislature and the judiciary should not be used as enforcement mechanisms on behalf of the executive.
Ms Zulu-Sokoni: Yes, I did state that. I said that when a matter goes to courts, the power of review of the reports of the Public Protector is actually a self-cleansing mechanism and if the courts decide that the matter should go back to the Public Protector after the review, the Public Protector still has a chance to review processes within the institution to ensure that such an occasion where a matter has to go back to the courts for review does not occur. Concerning the legislature, I think maybe my concern was broadly that it was the legislature itself that was complaining about the Office of the Public Protector. I would have expected that a member of the public would have come to make a complaint to the legislature. For example, in our case in Zambia, if the Public Protector has to be disciplined, it is the Judicial Complaints Commission that disciplines, but I do not know if it would be the same institution that would lay the charges without an outside complainant. I think that is where my concerns were because the court judgments came across to the legislature. But again, I will not go into that because, as Adv Bawa said, I have not needed to look at the charges. But that was my area of concern. The legislature is the correct institution, according to the laws of South Africa, to discipline the Public Protector if she has been found wanting.
Dr Gondwe: You further stated in your evidence in chief that the courts, by issuing personal cost orders against the Public Protector eroded respect for the Office of the Public Protector and that could have a chilling effect on an investigation. Is it your assertion that the Office of the Public Protector and the incumbent are one and the same? Were the courts, in issuing these personal court orders, not protecting the Office from the incumbent, and separating the two, that is, the incumbent from the Office? I am asking this because we heard from the previous witness, Mr Ebrahim, that the Office of the Public Protector and its incumbent are two separate things, and the Office of the Public Protector is more important than any incumbent. There would be instances where the Office would need to be protected from an incumbent. Would you agree that there are instances in which the Office will need to be protected from the incumbent?
Ms Zulu-Sokoni: Public officers do not personally hold a position, so there is a difference between the officeholder and the office. My statement regarding the erosion of respect for the Office of the Public Protector when there are personal costs awarded to that Office is because I am assuming you have the same Public Protector in office and there are costs awards we may make against the Office. Speaking for myself as a Public Protector, I go out and carry out investigations and have hearings but the perception from the public and the perception from the respondent institutions would be that it was a lame-duck Ombudsman event, even if she goes ahead with her investigations. She submits reports and if the matter goes to court she will lose anyway and personal costs will be awarded against her. But again, I must say when matters go to court, it is a self-cleansing mechanism for quality control. It is to be hoped that once an Ombudsman has a case brought before a court, it should not be the norm of matters always going to court and personal costs awards. I am saying if there is a trend, it tends to stigmatise the office.
Dr Gondwe: Ms Sokoni, is it your evidence before this Committee that much like the South African courts, Zambian courts hold the view that the Office of the Ombudsman is not a court of law because it does not perform the adjudication functions of a court? It has a different jurisdiction from a federal court of law and the Ombudsman is excluded from the composition of the judiciary. Can you also confirm that when you are at pains to state in your evidence that the Office of the Ombudsman should not be subject to judicial review, you were not articulating the position in Zambian law? You were speaking with such authority that I thought you were articulating the position in Zambian law and not your own personal perspective. I would have not known that you were giving your own personal perspective had Adv Bawa not taken us to that Zambian judgment in Bundle F of the evidence.
Chairperson: That was your last question. I hope you got them Ms Sokoni because I nearly got lost in that long question.
Ms Zulu-Sokoni: I have repeated myself several times during this session. A judicial review is a form of self-cleansing. It is a cleansing process for the Office of the Ombudsman. I have said that is also a method of quality controlling the work of the Ombudsman. In the Zambian context, the reason that matter had to be put to a test was that the Zambian Constitution states that the reports of the Public Protector shall be of binding effect. The only reason we went to court was to query why we should be subject to judicial review. But otherwise in other jurisdictions, including Malawi, the Ombudsman is subject to judicial review. I think even in Namibia, the Ombudsman institution is subject to judicial review. So our case was peculiar. But otherwise, I have conceded that judicial review is a cleansing process and is also a quality control measure.
Chairperson: Mr Herron.
Mr B Herron (GOOD): I was not aware of the Venice Principles and the OR Tambo Declaration. I want to ask you if it would be fair to say that these two documents could be regarded as best practice for the work of a Public Protector or the Ombudsman or how those offices are established.
Ms Zulu-Sokoni: The Venice Principles, the OR Tambo Declaration and the UN resolutions regarding the Office of the Ombudsman were meant to guide both Ombudsman’s Offices and states to use as best practice directives. The hope is that these can gain the status of treaties, where states can sign up to these treaties to ensure that the institution of the Ombudsman is protected. But of course, we have to have an agreed position on what should constitute an Ombudsman’s Office. Otherwise, as best practice guidance and guidelines, I think they are acceptable internationally.
Mr Herron: Having regard to how South Africa has established the Public Protector's Office, the practice of the Public Protector’s Office, the legislation and the constitutional provisions, would it be fair to say that South Africa, by and large, meets the standards of best practice?
Ms Zulu-Sokoni: South Africa meets these standards in the best way possible, the best way that I can put to say that is that South Africa is a champion of upholding human rights. Your Constitution is a model constitution. The South African Public Protector’s Office has been leading Ombudsmanship here in Africa which is why AOMA was interested in following the impeachment proceedings of the Office of the Ombudsman here in South Africa. We are learning lessons and we hope that we are also leaving something of value here in South Africa.
Mr Herron: The process that we are involved in right now is an unusual one. It is unprecedented in South Africa, and it appears from the two documents, the Venice Principles and the OR Tambo Declaration that even the drafters of those documents and those who agreed to those documents, did not fully engage with what best practice would be for the removal of a Public Protector. Is that correct?
Ms Zulu-Sokoni: I believe that the entire international standards that have been carved by various organisations wanted to address the protection of the Ombudsman while in office and carrying out investigations. The standard which has been advised in these documents is that the Ombudsman should enjoy the status of a high court judge at a minimum. So I think they envisage that in most jurisdictions the Ombudsman will be given the status of a judge in conditions of service which means that removal would be equivalent to that of a judge. I am in a different jurisdiction so it has taken a different route to remove an Ombudsman. I think that is something that these international organisations will have to address now that it is becoming apparent that it needs to be addressed.
Mr Herron: I raised that point because I think the document is quite detailed with regards to the values, the credibility, and the high office that the Office Public Protector should be but both documents have one clause that deals with removal. The Venice Principles talk about removal based on incapacity or inability and then refers to misconduct. We are dealing with charges related to misconduct and incompetence but the Venice Principles suggest that misconduct should be narrowly interpreted. I wondered if you could share what that should mean to the Committee and if it is relevant to our process. What does it mean when it says that misconduct shall be narrowly interpreted?
Ms Zulu-Sokoni: The IOI instrument aimed to ensure that the executive does not take advantage of the Office of the Ombudsman because it is a single person operating alone. We sit almost alone because the Ombudsman is not an employee of the executive, is not supposed to be an employee of the judiciary and is not an employee of the legislature but accountable to it. So the way it is phrased, narrowly interpreted, is to ensure that the Ombudsman is not victimized; that the executive does not try to trump up charges against the Ombudsman to ensure removal from office. So when we say narrowly interpreted that is what they are referring to.
Mr Herron: So do I understand you correctly that your interpretation depends on whether the executive is bringing the complaint, rather than the legislature adopting a motion? You are talking about protection from the executive, but in our case, we dealing with a motion adopted by our Parliament i.e. the legislature.
Ms Zulu-Sokoni: I think at the point when you established there was a prima facie case against the Public Protector and where you interrogated the charge to ensure it was not coming indirectly from the executive, and you ensured that the ingredients of the offence were sufficient to commence an inquiry. So what is important is that the charges being brought against the Ombudsman must not be because the executive is unhappy with the Ombudsman and that the matter comes through as a complaint to the legislature. It is meant for the protection of the Office.
Mr Herron: The last question is a similar question with regards to the OR Tambo Declaration, which also has only one clause on the removal of an Ombudsman or Public Protector, and that is clause 3.3 which talks about the need for a basis of just cause and shall be fair, transparent and regulated by the constitution and preferably involving an independent body. Can you perhaps share with us how you think that process should play out so that we meet the standards of just cause, fair, transparent and regulated?
Ms Zulu-Sokoni: Here in South Africa you already have a system in place where I assume that even a member of the public can come in and complete a complaint to Parliament against the Public Protector. Firstly, the system must have been followed through, the principles of natural justice must have been observed at each and every stage of the hearing of the removal of the Public Protector, and all according to what is in your Constitution, and the rules of Parliament, then I would assume that all the procedure of fit and fairness has been ensured. The principles of natural justice must be afforded so that this person who is before you for disciplining has legal representation, has been given a chance to understand the charges and that she's before an impartial body. If all these have been covered and your Committee is satisfied, then the OR Tambo resolutions have been fulfilled.
Mr Herron: Thank you.
Chairperson: Ms Thlape.
Ms M Thlape (ANC): In your opinion, what would constitute misconduct and incompetence by an Ombudsman and what should be done to hold an Ombudsman to account?
Ms Zulu-Sokoni: Looking at the aspects of misconduct: the Ombudsman is supposed to be an impartial official, upholding the highest levels of integrity which is the reason an Ombudsman is not supposed to be in employment and is not supposed to have any company or business that he is running. Misconduct could be if the Ombudsman is conniving either with parties for his own gain or the gain of another person. I think that is the highest level of misconduct for an Ombudsman. It would erode the trust in the office and in that particular individual who is holding office. Any misconduct related to endearing him or herself to the complainant for gain or endearing him or herself to the respondent for gain or to an outside party so the decision that comes from that office favours a particular party. With respect to incompetence, it could deal with how the work is conducted internally. Are reports issued on time, are the complainant and the respondents being consulted, and are the principles of natural justice applied in the interaction with respondents, with complainants and with the three separate arms of government? So incompetence speaks to the work that the Ombudsman is doing, and misconduct deals with contact with all the parties engaged with by the office, especially third parties.
Ms Thlape: Could you advise us on what could be done to hold an Ombudsman to account in case these allegations come to the fore?
Ms Zulu-Sokoni: So I believe this is the process that is going on right now. A member of the public can come to the legislature and complain about the conduct of the Ombudsman. I think that is the system that you have here in this country. When the Ombudsman is working, they can either receive a complaint from a member of the public, or they can undertake any investigation on their own initiative. So I am assuming that that is the same with the legislature here - either the complaint can come from an outsider or a Member of Parliament can complain, which is what has happened in the current situation. Again, I will repeat I do not know whether it is the procedure here that the legislature can, on its own initiative, call the Public Protector and discipline the Public Protector. I would think that the Public Protector and the legislature are one. The Public Protector is accountable to the legislature and the complaint would have to come from outside of the legislature for disciplinary proceedings against the Public Protector to commence, but that is just my thoughts. However, you already have a procedure in place and I think it is a good procedure and it is working for you.
Ms Thlape: As you know, here at home, an independent panel was appointed by Parliament and it found out there is a prima facie case or evidence related to the misconduct and the incompetence of the Public Protector or Ombudsman. Considering what you just explained from the classical AOMA, do you think Parliament must establish whether there is substance to those allegations?
Ms Zulu-Sokoni: I believe you already have such a process in place. I think Adv Bawa referred, if I am not mistaken, to an initial committee that found that there was a prima facie case against the Public Protector, and then this Committee was constituted. So I believe that is already in place unless I am mistaken.
Ms Thlape: My question was whether you think it is an easy way that Parliament should establish that committee to just find out if there is substance to these allegations? In your thinking was it necessary?
Ms Zulu-Sokoni: It is necessary, because like I said, in this particular case, the complaint came from within Parliament. So it should be established whether there is a conflict of interest when the complaint is made to see if it is a genuine complaint before it can come before the Committee – as to constitute this Committee is a very big thing. And it has been going on for a long time, so it must be very expensive. So there must be a level at which the complaint is screened. And then it goes on to this Committee.
Ms Thlape: You also indicated that there have been interventions in Malawi and another country that you could not remember. Do you think the situation in South Africa that we are dealing with currently with our Public Protector warrants such intervention? Considering the charges of allegations; do you think the situation here warrants such intervention at the international level?
Ms Zulu-Sokoni: I remember the other country was Mali, where AOMA was forced to intervene because an Ombudsman was under threat. So both these interventions came in because it was the executive that was carrying out acts of retribution against the Office of the Ombudsman but before the matter could go to any tribunal, the AOMA was able to intervene to rectify both situations. Regarding the last part of your question, we will see whether it is necessary for this interaction. Of course, there are different methods to mete out disciplinary measures. Of course, a letter could have been written. For instance, a letter could have been written to the Public Protector and she could have responded and maybe a decision could have been taken to suspend her. I do not know. But I think the process that you are going through is the best one because this is a high-level office and there is a need for everyone to be sure that the officeholder is worthy of holding the Office. But I do not know if other administrative ways could have been used or whether a letter of warning could have been written to the officeholder. I do not know if that is available, but in our jurisdiction in Zambia, if someone goes to complain to the Judicial Complaint Commission, then you have started a process which will go on until the end. I think it is the nature of the Office.
Ms Thlape: My question was actually whether, looking at the allegations or the charges we are dealing with, does the situation warrant mediators from those international bodies? Does it warrant their intervention here in South Africa?
Ms Zulu-Sokoni: South Africa is a leader in Ombudsmanship and we are thankful that the proceedings in South Africa are being carried out in a very transparent manner so that the whole world can follow the proceedings. In other countries, maybe we would not even have known what is going on. AOMA coming here was merely to ensure that the international standards or best practices were put at the disposal of this Committee and for the Committee to know that this institution also has an international character and nature and the international documents that guide operation. As I said earlier, what happens in South Africa impacts what happens in the rest of Africa. So it is good that you have interacted with us and we are hoping that from this interaction, it will be possible for South Africa to champion the cause of Ombudsmanship in Africa and to ensure that the O R Tambo Declaration is adopted by the African Union.
Chairperson: I recognise Ms Mananiso.
Ms J Mananiso (ANC): I am covered by my colleagues on the relevance of Ms Zulu-Sokoni’s testimony but I have four other questions. Do you think this process is a fair process for the PP?
Ms Zulu-Sokoni: We requested to be here because this institution investigates the executive. So we needed to come and witness how this process is being handled, and whether it is in conformity with or in compliance with the international standards set out. On the whole, the process has been explained to AOMA and we will see how this process is handled to the end. It would be premature for us to state at this time whether it is fair or not. A question was asked of me by Adv Bawa as to whether the complainant’s spouse could be a Member of this Committee. We also need to see how the Public Protector feels and if she is comfortable and is getting a fair hearing. So all these little issues have to be resolved.
Ms Mananiso: Do you think this process is an HR-related concept? I believe you have been following witnesses that have come before the Committee. Do you think the process is more of an HR process?
Ms Zulu-Sokoni: I did not have occasion to look at the charges but I did hear one witness, Mr Samuel. Most of the issues he was talking about were about the internal working processes of the Office. I do not know what the other charges are, but if charges are coming from the executive, you will usually find that you get complaints against the officeholder regarding the internal members of staff who come and complain. I am saying this from experience. I think it was in 2006 when a complaint was submitted against me to law enforcement officers. The key witnesses were the workers within my department. At the end of the investigation, it was said that these were matters which could best be resolved administratively which was done and a lot of the members of staff are still working with me. So it was a process of internal learning that we all had to learn. This is the way we are supposed to do these matters. Some people were sent for training and I even went for training in administration, just to ensure that I understand how procurement procedures are supposed to work and how human resource managers are supposed to be handled. After the inquiry in the office, we had to restructure it so that we were more professional. We are a very small institution. At that time, we only had two investigation officers, but we learned from that and now we have grown and have an office of over 20 investigation officers; but it was a learning process. When it is more related to and leaning towards human resource issues, I would expect that these methods can be handled administratively and the internal mechanisms of the Office of the Public Protector can be worked on to help the institution perform more optimally.
Ms Mananiso: Do you think people with functional autonomy, like the Ombudsman and Public Protector, must not account?
Ms Zulu-Sokoni: The standards have been put into place to ensure that the Office of the Ombudsman is held to account. There was a need for standards to ensure that even if the Ombudsman is being held accountable, it should not be as a result of victimisation, because this Office investigates the executive. Equating the office to the terms and conditions of service to a judge means that the disciplinary process for removal of an Ombudsman has been put at a very high level to ensure that the Ombudsman is held to account at the highest level. The process that you have here is the correct procedure according to the classical model where the Ombudsman has been appointed by the legislature and can only be removed from office by the legislature. So you conform to international standards, and I would not have it any other way. I have been held to account several times in my country. Whenever there is an audit in my country, we are audited and whenever there is a complaint by anybody, we have to account for how we have handled a particular case. Even the process of judicial review is just another method of holding an officeholder to account.
Ms Mananiso: Do you think this process is threatening the Public Protector?
Ms Zulu-Sokoni: As I said before, this is the no normal process that has been adopted by the South African Constitution. There is no way that I can say that it is threatening the Public Protector. It is following the normal procedure, but having said that, everything in its implementation must ensure that we have respect for the process, respect for human rights, and ensuring procedural fairness.
Chairperson: I now recognise Ms Sukers.
Ms M Sukers (ACDP): You have bought a number of standards and principles to our attention and even though they are not binding on us, they can act as a guide to practice. You stated that the Ombudsman must be given the highest level of support because the Ombudsman has the final responsibility for all decisions in the Office. Is that correct?
Ms Zulu-Sokoni: Yes. The Ombudsman operates in a corporate environment as a single person, operating as the legal entity for the Office. So the Ombudsman has to take personal responsibility for everything, every single report. In Zambia, we are the Investigator-General and the Commissioner so the classical Ombudsman has to meet the highest standards in the principles that have been set as a guide to the Ombudsman’s practice. It is required that the Ombudsman should have the highest levels of integrity because all the decisions fall upon the shoulders of the Ombudsman.
Ms Sukers: So the Ombudsman cannot say that his responsibilities are only in regard to the reports that he delivers. Is the Ombudsman responsible for what happens within that office? All aspects of that office?
Ms Zulu-Sokoni: To give an example of judges: judges have constitutional responsibility but for the administrative functions of the judiciary, there is usually an officer who is supposed to be in charge. So ideally, for the Ombudsman office, the Ombudsman should have like a chief operating officer, or a chief executive officer who takes care of the administrative functions, but where the functions of administration and the constitutional functions become mired, the Ombudsman has to take responsibility even for administrative decisions. That was the problem I had when I was operating as Executive Ombudsman. The final decisions for administration were on my shoulders and we had the problem of members of staff complaining that things were not being done right in the office but I am not an administrator; I am a lawyer and I did not know all the government procedures. I had to learn government procedures. I had to be trained for that. When we became a parliamentary Ombudsman, we separated the functions. Now I carry out the constitutional functions and I have a permanent secretary in my office who is responsible for the administrative functions. So that makes a happier Ombudsman.
Ms Sukers: So the administrative function, or the lack thereof, has a direct impact on the quality of work of that office but does it not primarily lie with the Ombudsman?
Ms Zulu-Sokoni: Yes, at the end of the day, the Ombudsman is responsible because of all the operations of the Office of the Ombudsman. For example, for the reports to be prepared, you have to use the investigation officers, and the levels or standards of integrity, and standards of excellence, all emanate from the Ombudsman. At the end of the day, the Ombudsman must take responsibility for the culture of the institution.
Ms Sukers: You also stated that an Ombudsman must learn from the judgments of courts. What actions should an Ombudsman take to put this into practical effect? And if they do not take the steps, would the Ombudsman be guilty of misconduct?
Ms Zulu-Sokoni: Depending on the nature of the engagement. For example, if the judgment states that there was not sufficient consultation before the report was released, then the procedure and standards in the Office would have to be changed. As I was explaining, in our office and according to the Public Protector Act, the respondent institution and the complainant have 30 days within which to respond to the report. If they respond and they have made no comments on the report, then the report goes out as it is. But if they have submitted comments, we must look at their comments and if we need to incorporate the comments, we incorporate them. Where we do not incorporate the comments, we must give reasons why we are not incorporating the comments and then release the report. If we incorporate comments, the report must go back to the complainant and respondent to show them that the comments have been taken into account and have been included in the report. So once a judgment comes back to you, and it was not in your favour, you must look at the specific technical steps that you have missed and correct those steps. If you are able to correct the report, if it is not a binding report, you can still be able to correct the report. But if it is a binding report, you must have measures in place for future investigations so that you do get it right.
Ms Sukers: When you do not take corrective actions, and there is a repeat of the same errors, would you not say that it is misconduct? That is the question. Would it amount to misconduct to ignore and not implement corrective actions? Would that be misconduct?
Ms Zulu-Sokoni: Then I think that the Ombudsman does not understand his work.
Ms Sukers: You have highlighted that the appointment of an Ombudsman must be handled with great care. But do you admit that it is possible that an Ombudsman could be incompetent? What role do the international organisations you represent then play to address the potential or real misconduct by incumbents who are members of the organisation? How do you as an organisation practice self-cleansing?
Ms Zulu-Sokoni: When an Ombudsman is incompetent, and we are talking about the internal workings of the office, such as they are unable to draft reports, deliver reports on time, have a backlog of cases, etc. It only comes to the attention of the AOMA if the officeholder says he is having difficulties. We can ask, for example, a seasoned or retired Ombudsman to go to that office to see if they can help. This happened in the Gambia when there was a need to put even the legislation in place and to help the office start working. The Commonwealth helped to fund that activity so that the country could be helped. Then there have been instances where the Commonwealth Secretariat has sent experts to help Ombudsman Offices and to carry out training. And the IOI gives a good grant to each continent so where there is a need for expertise or training, they give the country assistance. However, because we are an organisation that is there to encourage cooperation and growth when a country is not adhering to the standards, we take an interest in whether it is the Ombudsman or the government that is not getting sufficient support. As I said, unless we see that an institution or a state is not adhering to standards and is failing, absolutely, even after a systematic intervention, that is when we look at such matters. Our interest is to grow the Ombudsman institution in any country.
Ms Sukers: In what way is this impeachment process a threat to Ombudsmanship on the continent? I put this question together before you replied to one of my colleagues but I am still asking the question because I am trying to ascertain whether, in your mind, this process in any way poses a threat. You have extensively answered and I have heard you say that you have looked carefully at the process. You do think that we are trailblazing, that we are ahead in South Africa in many aspects. But I want to hear from you in what way this impeachment process is a threat.
Ms Zulu-Sokoni: The issue of threats to Ombudsman institutions has been a cause of concern, both at the AOMA and the IOI level, and even at the United Nations level. When this impeachment process commenced, it was the first of its kind, of course. Secondly, the process had been going on for some time. I think it was brought to our attention from the onset so we were sure that the process would end sooner or later and there would be no need for the AOMA to come in because in most countries, it usually just fizzles out before we even intervene. However, in the case of Adv Mkhwebane, because the OR Tambo principles were already drafted, we had some standards to look up to. So we wanted to ensure that the standards we put in place were being adhered to in South Africa because, as I said, South Africa is a beacon. If you get it right here in South Africa, it will be done properly in the rest of the continent.
Ms Sukers: When an Ombudsman wins or loses labour cases brought by or against staff, what are the self-cleansing steps that should be taken by the Ombudsman? I know you used your example but if other commissions find an Ombudsman guilty upon appeal or find that people have been treated unfairly, what self-cleansing steps should be taken?
Ms Zulu-Sokoni: When an Ombudsman loses labour cases against staff, we start in the Ombudsman's office. I did state that in our office, we have a questionnaire to help. The principles of natural justice should guide the work of the Ombudsman at each and every stage. So when a complaint comes in, there is a questionnaire that is asked of the complainant. Did you submit a complaint? After you submitted a complaint, were you given a hearing? If you were given a hearing, did you feel it was a fair hearing? So there are several questions we ask. When we get a complaint from the complainant, we also ask those same questions of the respondent institution. Were the principles of natural justice followed? Were they given a hearing? When you have labour complaints, that is the standard that you are supposed to use. if you have lost the case, and these people have come back to you, you have to ensure within the institution that everyone knows the standards in the Office; everybody must be made aware. If there is a charge, everybody must be given a fair hearing. Everybody must be given a chance to have somebody to defend them. So the principles of natural justice. Then again, when we are dealing with the respondent, the same standard way for dealing with members of staff must be followed, especially because we say that the Office of the Ombudsman must be the standard and all other institutions must measure themselves against the Office.
Chairperson: Mr Mileham.
Mr K Mileham (DA): Are you aware that only a Member of Parliament may initiate proceedings for the removal of a holder of public office in terms of section 194 of the South African Constitution, read with National Assembly Rule 129(r), through a substantive motion in the National Assembly. Are you aware of that?
Ms Zulu-Sokoni: No.
Mr Mileham: Okay. So a member of the public cannot do that. It would have to come through a Member of Parliament. We have heard a lot about functional autonomy yesterday. As I understand it that means that parliament, the judiciary, and the executive cannot interfere or intervene in the work of the Ombudsman or the Public Protector. Is that correct?
Ms Zulu-Sokoni: They cannot interfere when an investigation is ongoing. We are talking about functional autonomy. We are talking about the actual work. The Ombudsman must be allowed to carry out that investigation independently.
Mr Mileham: As part of that, you indicate that the Public Protector in South Africa is accountable to Parliament. How is her independence compromised in any way if the only point of reporting and accountability is to Parliament?
Ms Zulu-Sokoni: When we talk about the independence of the office being compromised, normally the threat comes from the executive. That is the reason the standards are couched in a particular way. The executive is very, very powerful so we talk about the executive posing a threat to the office of the Ombudsman.
Mr Mileham: As a follow-up to that: if Parliament is following a process of accountability, is it not a threat to the independence of the Ombudsman?
Ms Zulu-Sokoni: Normally we are not saying that Parliament is the institution directing threats at these standards. Normally it is the executive which poses a threat to independence.
Mr Mileham: Okay, are you aware of any such threats in South Africa to the independence of the Public Protector? Perhaps from Parliament?
Ms Zulu-Sokoni: I would not say that. There have never been any reports of threats to the independence of the Ombudsman from Parliament.
Mr Mileham: You spoke earlier of how the judicial review of reports is an element of quality control over those reports. If the highest court, the Constitutional Court in South Africa, makes multiple findings of incompetence or ignorance of the law against the Ombudsman, would you consider that to be grounds on which the individual could or should be removed from office?
Ms Zulu-Sokoni: You have said if there are several judgments. As I said, the court process is a quality control; it is a cleansing of the Office of the Ombudsman. If the mistakes are repetitive, then I think the only conclusion is that there is a need to commence a process of inquiry into that office.
Mr Mileham: I think it was yesterday Adv Mpofu suggested that the findings of the courts were being transplanted into these proceedings, and because of that Adv Mkhwebane was not being protected by Parliament. Do you agree that these proceedings have to consider such findings as part of our deliberations into that office?
Ms Zulu-Sokoni: I think I haven't looked at the charge sheet but I would think that the process that has been started, is sufficient in terms of self-auditing that at each and every stage, you are ensuring that the principles of natural justice are being adhered to. Of course, it is the first time that it has happened, but I think they should make everybody who is concerned in this process more careful in ensuring that they are adhering to the proper standards.
Mr Mileham: The protection of the Ombudsman by Parliament, does that refer – and I am trying to understand here – to the protection of the Office of the Ombudsman, rather than the protection of the individual who occupies that Office?
Ms Zulu-Sokoni: The Office of the Ombudsman.
Mr Mileham: The automatic follow-on to that is, should Parliament have the power to appoint and or remove an Ombudsman from Office in specific circumstances and on specific grounds?
Ms Zulu-Sokoni: Actually, that is the reason all these standards talk about the security of tenure. They talk about stating the conditions of service. Once you appoint an Ombudsman, the process of vetting should have been at such a high level that you shouldn't expect that you are going to be changing Ombudspersons every two years or three years. That then goes to the question of the independence and autonomy of that office.
Mr Mileham: That does not answer the question. Should Parliament have the power to remove a person from the Office of Ombudsman on specific grounds and in specific circumstances?
Ms Zulu-Sokoni: Yes. I agree with that. All the standards are about that.
Chairperson: Ms Denner.
Ms H Denner (FF+): My questions have been asked by my colleagues, but I have one follow-up question to a question Mr Mileham asked to do with the use of court judgments during these impeachment proceedings. Yesterday the point was made by Adv Mpofu that court judgments should not be used during these proceedings.
Chairperson: Pause. Adv Mpofu.
Adv Mpofu: I do not like to be misrepresented. I never said court judgments should not be used in these proceedings. Mr Mileham at least said it better. I said that this process should not be used as a conduit pipe simply to transplant a judgment and then use it as an impeachment basis without more. That would mean that the judiciary, through this process has the same complaint that runs through. The point I made to the FF+ party leader and I have made this point ad nauseam to Dr Mulder, was what should not be done is simply transplant judgment on the basis that it is binding, and just use it here. Then why are we having an inquiry? We should simply take the judgment that says she's bad, she's this, and just chop her head. Why waste time? An inquiry means to inquire into something. That is the only point I am making. So you can ask the question based on my current position. Otherwise, do not ascribe it to anyone, just ask whatever you want to ask.
Ms Denner: I apologize for paraphrasing but thank you for that explanation. Going back to transplanting judgments during these inquiry proceedings, let me mention several judgments are being used during this inquiry proceedings. What else should this Committee then rely on that is more reliable than duly considered judgments, in your opinion? As a side note, the FF+ leader is Dr Groenewald, not Dr Mulder.
Adv Mpofu: They all look the same to me.
Chairperson: Your response, Ms Zulu-Sokoni.
Ms Zulu-Sokoni: I think from the onset, I should say the reason there is a flurry of judgments coming in is that the Public Protector reports are binding. That is my point of departure if most of the charges are based on court judgments. My submission has been that binding decisions are disadvantageous to the Office of the Ombudsman because they bring unnecessary attention to the Office. In the end if there are a lot of judgments against that office, then the Ombudsman of course will end up being disciplined. But where the Ombudsman issues recommendations, the report is submitted to Parliament and Parliament can quality control it at that point and if necessary send the report back. It gives the Ombudsman a chance to hone skills of Ombudsmanship. That is the only concern we had. The main concern is that the reports now have a binding effect and the process has come to this point where there is a parliament inquiry.
Chairperson: Mr Maneli.
Mr B Maneli (ANC): The questions I wanted to ask have been asked but I want to follow up just to check my notes are correct. Just to go back to the point of self-cleansing quality assurance in what should be the attitude to review. Here is an opportunity for the Public Protector to report to the Portfolio Committee in Parliament. Would you regard that as part of that quality assurance or self-cleansing? This is an Inquiry Committee as opposed to the Portfolio Committee where the Public Protector reports. Would you regard that as an accountability process where Members have an opportunity to make recommendations to improve the work in the Public Protector’s Office?
Ms Zulu-Sokoni: If there is a provision that the Public Protector can submit reports to a Committee – I do not know whether these are special reports – I would think that is a very good thing and it should be incorporated as a permanent measure so that any Public Protector report should go through a Committee before release because it will ensure that the appropriate standards are in place. It would be able to tell the Public Protector that she perhaps did not adhere to a particular standard in a report.
Mr Maneli: Maybe just to correct this point. I am not referring specifically to an investigation report. I am just talking about all reports, including what happens in the Public Protector’s Office, targets that they've set for themselves, etc. You would also look at that as part of that self-cleansing because they would have a report on court findings and the Committee would reflect on how they see the Office performance and how it can improve its work.
Ms Zulu-Sokoni: Yes, I would consider that an appropriate quality assurance intervention where reports add to the performance of the Office.
Mr Maneli: You said if the errors are repeated, and court reports continue, it is not just a matter of misconduct, but it talks to the incompetence of the Public Protector’s Office. I just wanted to be sure of what you were saying. Where does self-cleansing come in when errors are repeated over a period of time? Would you consider this as misconduct or sheer incompetence on the side of a Public Protector?
Ms Zulu-Sokoni: So if the mistakes are repeated and judgments are not in favour of the Ombudsman, then another report is issued and the same mistakes are made and the Ombudsman does not seem to correct those mistakes. If it is repeated, it goes towards the incompetence of that particular individual because why should they not be able to correct themselves?
Mr Maneli: Is it your submission because you keep on coming to binding and non-binding recommendations, that although we already have binding recommendations of the Public Protector by a court decision, that instead of holding the Public Protector accountable, we probably need to look at the system and take it back to recommendations that are not binding to eliminate the litigation that happens? Would that be better than strengthening the competence of a Public Protector?
Ms Zulu-Sokoni: We have many Ombudsman Offices operating by way of issuing reports which have the effect of recommendations the world over and some of them are working very, very competently. They are issuing quality reports. As I have said before, this has been a tried and trusted system. Even if the Office went back to issuing reports which have the effect of recommendations, I do not think you would be losing out on anything as a nation. Simply because that is the power of the Office. The fact that the officeholder can issue report, which contain recommendations, can make the officeholder unreachable from the normal temptations which accrue to an officeholder.
Mr Maneli: There may be an argument that says that mere recommendations – as was the case before that court decision – were ignored by those that need to implement them. Therefore it is necessary to try and force implementation. There will also be another argument that says you must do everything possible to show competence in investigations and recommendations so that it is a balance between the two. The Public Protector was appointed as a competent person who would make proper recommendations, it is necessary to ensure that the executive does not undermine the recommendations. Such an argument would probably say the system is correct; it is just about holding each other accountable rather than changing the system because one fears litigation.
Ms Zulu-Sokoni: This thing is you cannot foresee the type of investigations that an Ombudsman has to investigate and say that the system of binding decisions is better because it is all about holding the Ombudsman to a higher standard of accountability and ensuring that the institutions adhere to the report. The respondent institution goes to court where it does not want to implement the Ombudsman report. Ideally, the report is supposed to be tabled before a parliament committee and that way it works. The majority of jurisdictions work that way. If the respondent institutions were not implementing the Ombudsman recommendation reports, the institution of the Ombudsman would have died a long time ago. But it is still thriving. It is growing.
Mr Maneli: You have already agreed that this Committee is an important step in handling the matter. Yesterday you seemed to suggest that there is still time to stop this process. So if that is what you were saying, in the light of all the judgments and the prima facie evidence put forward by the independent panel and we were to go that route, is it in the public interest for Parliament to do so? And if you think that is the case, why? And why are you talking about going back to a recommendation approach instead of a binding one?
Ms Zulu-Sokoni: According to the Nkandla judgment from which Adv Bawa read the remedial action reports of the Public Protector may be binding in certain cases. I asked her who decides whether a report is binding or not binding. Does the Public Protector decide? My view is that it must be decided. South Africa still has a chance to make up its mind because if that judgment said the remedial action reports of the Public Protector may be binding in some cases, then it means that there is still an opportunity for the institution to be transformed into one where the Ombudsman reports are recommendations only. On this ongoing process now, it is still a process and the inquiry is still going on. Our main job here was to bring to the fore the international standards concerning the operation of the Ombudsman Office. It will be up to the Committee to decide how they can best ensure that they adhere to the dictates of the Constitution, but at the same time, ensure that there is procedural fairness in this matter.
Chairperson: General Holomisa
Gen B Holomisa (COPE): I noted your advice regarding the behaviour of the executive. Here in South Africa, the executive is part of the ruling party caucus which takes decisions to protect one of 'theirs'. We witnessed this behaviour during the investigation by former Public Protector Thuli Madonsela where the ruling party closed ranks to try to water down her findings on the Nkandla matter. They called her names such as a CIA agent. We recently witnessed the same behaviour in the Justice Portfolio Committee. So the question is whether Parliament can close its eyes and continue to waste money on a process like this when the courts have already declared that the Public Protector was suspended for asking the President questions about Phala Phala. You say the spouse of the complainant should ordinarily not sit in the Committee and must also declare. Must that declaration be made to Parliament or the accused person? Finally, many remedial actions have been recommended by the Public Protector to state institutions but no action has been taken to implement those findings. Who must be held responsible for not implementing those findings? The Public Protector has also won some court cases. Would you agree with me that you cannot focus on lost cases only when you look at her competence, especially when you also hear that she has been running a clean audit in the administration?
Ms Zulu-Sokoni: As I said before the process has already commenced and the court decision you are referring to, I have been given to understand that it is still an ongoing process as there is an appeal in that matter, so I am not qualified to comment on that. The process has already begun here in Parliament, so I think you will have to just see it to its conclusion, but we have to ensure that there is procedural fairness and that all parties are allowed to bring evidence forward. You have said that the Public Protector issues reports but the remedial action and the orders or recommendations are not taken into account by respondent institutions. Are the remedial action reports binding or merely recommendations?
Mr Holomisa: You will see in South Africa, the Public Protector investigates complaints from the public and recommends certain actions be taken but nine out of 10 times in over 40 000 of those cases that have not been challenged, departments and state-owned enterprises ignored the recommendations despite those orders serving the poorest of the poor.
Ms Zulu-Sokoni: If the remedial action reports are not being implemented by the respondent institutions because the reports are binding, then the Public Protector would have to take the matter to court to enforce the respondent institution to implement them. This is the problem of binding decisions. Lastly, you stated that the Public Protector has won cases in the country and has clean audit reports but the positive achievements are not being recognised by this Committee. I would hope that since this process has already started, the evidence that you are talking about would be laid before this Committee so Members can consider it and I would hope that it would help in the quest to resolve this.
Chairperson: Mr Nqola.
Mr X Nqola (ANC): We appreciate your testimony because of the way that it actually helps us beyond this and it equally helps us to strengthen our Ombudsman system in the country. Related to one of the charges against the Public Protector of South Africa, what do the international principles and standards say in a case where a Public Protector may have misconducted him/herself in the course of performing the duties of the Office?
Ms Zulu-Sokoni: The Public Protector in a classical system is accountable to the legislature and where the Ombudsman has misconducted himself there should be a process by which the legislature can conduct an inquiry into the conduct of that Ombudsman. Also where law enforcement agencies receive reports of criminal action, criminal investigation could be necessary.
Mr Nqola: You say that the legislature must hold an Ombudsman accountable if there is possible misconduct on his part. So we will regard this process as that accountability system which must be unleashed if there is an indication he may have misconducted himself in performance of duties.
Ms Zulu-Sokoni: Yes, but I still qualify that by stating that the Public Protector would not be sitting here for these hearings if the process of sending reports to Parliament for quality control had taken place during the process.
Mr Nqola: In terms of South African law, the Public Protector South Africa is established in terms of the Constitution that is the supreme law of the country. Now, this supreme law establishes the Public Protector and there is this law that establishes the process that must be followed in the event the Public Protector may need to be removed. Now you have all the international standards that you have eloquently expressed. From a legal point of view, which one outweighs the other?
Ms Zulu-Sokoni: As I said, the international standards we have introduced before this Committee is of persuasive value. I think the OR Tambo Declaration has yet to be tabled before the African Union. But there are standards that we are using as a guide to ensure that Ombudsman institutions established in various countries which are facing threats, maybe administrative or financial, are assisted by bringing these standards to the attention of their governments. So there is no way that you can equate those standards to the law of the land. The South African Constitution is the supreme law of the land. That is the reason this process is going on.
Chairperson: Dr Lotriet.
Dr A Lotriet (DA): Ms Sokoni, you did mention during your evidence that you or your organisation was requested for an intervention. I would like to know in positioning your evidence today, as appearing as a witness for the Public Protector, does this relate to the actual request for intervention that your organisation received? Did your organisation consider approaching the Chairperson of this Committee? I ask because you also stated today on several occasions that your aim is to assist this Committee by doing a presentation on best practices of Ombudsmanship. So did you or your organisation at any point consider approaching the Chairperson to make a presentation to this Committee to assist us so that we can do our job properly? Or was your only option to appear as a witness for the Public Protector?
Ms Zulu-Sokoni: Initially, we had to come here as observers, having written to this august Committee requesting to observe this hearing. Following that, the organisation did ask me to provide expert witness evidence to introduce the concept of the Ombudsman and the international standard standards of Ombudsman ship, so the submission was made to this august Committee and it was accepted. In the event that the Committee would have found that there was no need for any testimony from AOMA, it would have informed us. But we are happy to be of assistance to this Committee. We thank you for having allowed us to make this representation on behalf of AOMA.
Chairperson: Ms Dlakude.
Ms D Dlakude (ANC): Ms Sokoni, under the circumstances where the Public Protector contemplates taking remedial action without consulting or giving the affected party an opportunity to comment on the report, do you think this is in line with the laws of natural justice and the conduct expected of a Public Protector?
Ms Zulu-Sokoni: The principles of natural justice are the tools of the trade. As long as you can stick to utilising those principles, I think you will not find yourself going wrong as an Ombudsman.
Ms Dlakude: How do you ensure that the reports produced by your Office can withstand legal scrutiny?
Ms Zulu-Sokoni: In my Office, you must interrogate each and every witness, you must interrogate each and every document and when you are writing the report, you must interrogate each and every finding, and each and every recommendation so that it would stand up to the principles of natural justice. Each and every witness in the report must have been given an opportunity to present their case. You must ensure that the people who sit with the Public Protector to hear the case do not have an interest in the case. Once the report is prepared, the parties involved in the case must have sight of the report. If the report is returned, any necessary corrections are made. The report must be sent back to the parties and they must have a look at that amended report.
Ms Dlakude: As an Ombudsman in your country, how do you deal with backlogs in your office? Do you rush reports without sending them for quality assurance or do you have other mechanisms in place to deal with lots of reports?
Ms Zulu-Sokoni: Quality assurance is close to my heart. I may even be guilty of maladministration in that area because I cannot release a report unless I am absolutely happy with that. So we do have backlogs, but we cannot compromise report quality simply because of the backlog. We just have to ensure that we get the report right and we give the report sufficient scrutiny.
Ms Dlakude: How do you deal with backlogs in your office?
Ms Zulu-Sokoni: The only way we know is possible is we have to work weekends or we have to work overtime just to clear the backlog. That is the only way that we can do it. But the records will not be released until we are happy and we are ready. It is about proper quality control.
Ms Dlakude: We have guests in our midst. I think there is something that we need to clarify so that when they leave this meeting, they go out with the correct information. We are accused of being members of the ruling party, about which we are not apologetic. And what we discuss in our caucuses has nothing to do with this inquiry. In this parliamentary environment in South Africa, we do not have a constituency system. We have parties that contest elections, and they send their members according to their party lists to Parliament. So 14 parties are represented in this Parliament. All 14 parties give mandates to their political parties, so we cannot be accused of being members of the ruling party when it comes to defending the executive. We embarked on this process because of a house resolution, a motion as Mr Mileham tried to explain. The motion of the House was adopted because a Member of Parliament in this country is allowed to bring in a substantive motion against a fellow member, against a Member of the Executive or anyone else. So that was embedded in our Rules which are in line with our Constitution. Hence, we are here today. On the judgment of the EFF v Speaker of the National Assembly, we got to…
Chairperson: Please pause. Adv Mpofu.
Adv Mpofu: The fact is that at this stage of proceedings, Members are allowed to ask questions but not to make speeches.
Ms Dlakude: We are a Committee of Parliament empowered by the Constitution and Rules of the House to do our work and there is nothing wrong with us embarking on this process. We have not yet concluded the process. We have our mandate from our political party, the ruling party. Our mandate is to embark on a fact-finding mission so that we can recommend a decision to the National Assembly but we are not yet there. Other witnesses are still to come. It does not mean once you have appeared before this Committee, we will conclude. We still have a long way to go.
Chairperson: That was the last Member in the interaction with yourself as a witness. I will now take this opportunity and ask for any last reflections or pick-up questions from Adv Mpofu.
Questions of clarity from Public Protector legal team
Adv Mpofu: Let us deal with the speech. Do you know the difference between a fair process and a witch hunt? Are you familiar with that term "fair process”?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: What has been described to you in that speech was what we know as the party line. When there is an inquiry, none of the members here will vote independently but according to the political party line, assuming there is no secret ballot.
Ms Zulu-Sokoni: I labour to stress to this august Committee, that this process is ongoing and there is no way that we, as AOMA, can say that there has been procedural fairness or the Public Protector has been treated unfairly. It is an ongoing process. So we also have to wait until the end to answer the question. I will just say that. I am glad that she explained that you do not have constituencies here in South Africa and you represent different parties. I just hope and pray that there is justice at the end of the day. I would hope that the members of this august Committee vote as legislators and not as members of a political party in this matter and vote fairly.
Adv Mpofu: You said if the rules of natural justice are followed, if there is fairness in this process, if this, if that, then the OR Tambo principles would have been adhered to. But I do not think anyone here is hearing you because then we would have a perfect system, would we not?
Ms Zulu-Sokoni: Yes, if all the standards were adhered to in the world, it would be an ideal world.
Adv Mpofu: Let me start the question by referring you to the principles that Mr Herron read to you, which is the removal process shall be based on just cause and shall be fair, transparent and based on the Constitution and preferably involve an independent body. So if the process is fair, transparent and adheres to regulations, of course, fairness would be adhered to. But there is a difference between whether we have a law and on the ground those things happen. And I think that is where you are being missed by Members. Let me assist by asking it like this. I will use the Declaration as a yardstick. If there is an empowering provision that the Public Protector must have full legal representation, that is a good thing, is not it?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: But if on the ground, she's told she cannot have legal representation, is that in conformity with the OR Tambo Declaration?
Ms Zulu-Sokoni: It would not be in conformity with the laws if the laws or the rules state that she's entitled to legal representation and then it would touch on the OR Tambo Declaration.
Adv Mpofu: Let us say on one or two or three days, the Committee continues without her having legal representation, despite that very good law. Would that be in line with the principles?
Ms Sukers: I need to know if I may ask when the Public Protector was denied legal representation as being put by the Advocate now because that has not happened in this Committee.
Chairperson: Just pause there. My understanding is that he refers to the challenge Parliament put up in the Western Cape High Court when our Rules were challenged by the Public Protector. What they challenged us on was the issue of legal representation in the way we initially put it in the Rules and also regarding the judge. I am hoping that is what he's referring to.
Adv Mpofu: I am referring to both, but the answer is simple. That is correct but I did not want to detail it for the witness just to assist her. If your question was when, it is as simple as 1 September, 1 November and 2 November. You were here. Did you see me here on the first of November?
Ms Sukers: Chairperson, is the Advocate addressing a question to me?
Chairperson: No, fine. Continue Adv Mpofu.
Adv Mpofu: They do not understand the word “if.” So let me explain. There is a provision that says there must be legal representation and then say, tomorrow (I am making this up), the Chairperson says I am not allowed to come here, I am saying you must differentiate between the good law which we all accept says there must be legal representation, which conforms with the OR Tambo principles and a scenario in which the Chairperson locks me up in my car for two days, then that is not in conformity with the OR Tambo Declaration, correct?
Ms Zulu-Sokoni: Yes.
Adv Mpofu: Let us take another example.
Chairperson: We will take a break and be back in five minutes.
Chairperson: Let us proceed.
Adv Mpofu: We have made an example of the legal representation. I will go to another one which will cover half of your evidence, which I say has been misunderstood. The principles of natural justice, at least the ones that we all know, are audi alteram partem and the rule against bias. If we have a rule that says that the process must be fair. Again, that is a good thing, is not it?
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: But if, on the ground, you have the situation that has been mapped out where the spouse of the complainant is here in the Committee, would that be in conformity with the OR Tambo Declaration?
Ms Zulu-Sokoni: I think I stated earlier on but I will repeat that it represents a conflict of interest for that particular Committee member and he must declare that conflict of interest.
Adv Mpofu: But I'm asking …
Ms Zulu-Sokoni: It would not be in accordance with the OR Tambo Declaration as you cannot be sure that the person will be treated fairly.
Adv Mpofu: Ms Bawa told you some story about a poor person being the complainant. Do you remember that example? Now, if the complainant, whether it is a Member of Parliament or a poor person, is barred from coming to give his version of the complaint, is that in line with the OR Tambo Declaration?
Ms Zulu-Sokoni: No, it is not.
Adv Mpofu: If the JCC in your country, the independent panel in ours, or whichever body declares the prima facie stage - listen to me carefully. Let us say there are two charges in Zambia, the one is for stealing this pair of glasses and the other is for stealing this bottle of water and the JCC in Zambia says there is prima facie evidence for the stealing of the water but there is no prima facie evidence for the stealing of the glasses. Would it be fair if the inquiry says, well, we are still going to inquire into the one that did not pass the prima facie test. Would that be in line with the OR Tambo principles?
Ms Zulu-Sokoni: That would defeat the need for the initial inquiry.
Adv Mpofu: So it is no use to tell me that there are good principles but when we come here, then all hell breaks loose. Right? Do you agree that it is possible for a process to be compliant with the rules of a country, although the rules of that country are themselves not compliant with international norms and then the process is unfair. Apartheid is an example. It was compliant with the rules of the country, but it was still unfair. So technical compliance does not mean something is fair in the objective sense. Would you agree? In other words, if the law or the rule itself is unfair, or the process itself is unfair, the fact that it complies with the so-called rules of a country does not make it compliant with the objective standards of fairness.
Ms Zulu-Sokoni: Yes, maybe I can qualify that. I will give the same example I gave earlier of countries whose reports have a binding effect are in the minority. International standards require that an ombudsman should issue reports which have recommendations that are not binding, so Zambia and South Africa are not compliant with international standards. This may result in their institutions not operating optimally.
Adv Mpofu: That is an excellent example. In other words, Zambia and South Africa might comply with the domestic rules but that does not mean that they comply with the international standard.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: I think that covers that. And is that not the whole point of having international norms? I think the fallacy here is that people think that if you have international norms, it means you must have uniformity. But that is not what international norms stand for. In other words, if you have 140 member countries, each one of them might have different rules but the whole point of having international norms is that all 140 countries must conform with the three binding principles, independence, fairness or whatever. That sets the rules at a higher level. Is that not the whole idea of having treaties and UN charters and those kinds of things?
Ms Zulu-Sokoni: I think that is a reason why it was so important for us to be given an opportunity to address this Committee to make it aware. And I am so glad that one or two of the Members stated that they did not know the Venice Principles and all that. So, I hope it will prove helpful.
Adv Mpofu: Yes. I echo the words of those Members who have correctly thanked you for effectively educating all of us for about the international norms. I do not know what to say about the people who still ask you about the relevance of your evidence. There is nothing you can do about that. OK. I am done with trying to explain compliance with international standards versus the actual situation on the ground. I am just trying not to spend a lot of time but it is a major misunderstanding, if you look at the type of questions asked. Now, I want you to picture two scenarios. There is a scenario where the Public Protector genuinely believes that a certain procedure is correct, and because of that belief, she repeatedly implements that procedure. Then, at a particular point, the court says that procedure is wrong.
Ms Zulu-Sokoni: Yes, yes.
Adv Mpofu: And then after all those times that she used the procedure, genuinely believing it to be correct, is there any point in counting the number of times whether it was three or four or 20? At the time she believed that the process was correct. Like in your case when you thought that old legislation was actually the latest legislation? Can one impeach a person for that?
Ms Zulu-Sokoni: Had those actions taken place under remedial action recommendations, then they would not be the subject of an inquiry here today because reporting by way of recommendation has a way of cleansing itself, through submitting the reports to Parliament. Also, when you submit the report to the respondents, if they are not happy with the report, they can actually ask you to review particular points. There is a continuous process of consultation to further report is finalised.
Adv Mpofu: Now let us contrast that situation with this example. If after the matter goes to court, and so on until it reaches the highest court in the land which states that the procedure she has been following was not correct and the Public Protector goes back to her favourite procedure, irrespective of what the court has said, would you agree that would be misconduct? In other words, I am contrasting a situation where the conduct is repeated after the court has declared it incorrect as opposed to repeating it before the court decision. Those cases are chalk and cheese?
Ms Zulu-Sokoni: The problem here is just that the Public Protector South Africa is issuing binding decisions and it would not have been necessary to go through this whole court procedure to the appellate court or the final appellate court if the actions were not binding.
Adv Mpofu: No, that is fine. I understand that. Let us leave that out there. It is not about binding or not binding. Here is a concrete example. This is a process, which was covered in three of the cases that feature in this inquiry, that is the two Gordhan cases and the CR17 case. You may not be familiar with those but in that process, it is said the Public Protector and all her predecessors believed that you give the opportunity of one audi in a particular set of circumstances. There are obviously many cases where she did that. But then the court system said there must be two audis. She must comply with that regardless of what her predecessors did.
Ms Zulu-Sokoni: Yes.
Adv Mpofu: If she says she does not care but still believes that it is one and continues in her old ways, then that would be wrong, would not it?
Ms Zulu-Sokoni: Yes, yes.
Adv Mpofu: And that is the point I am making. The two situations seem to be conflated. So before the pronouncement of the court, it does not matter whether she did that 10 times, or 100 times or 100 000 times because she believed that was how it was done.
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: There are many examples of this. In one example, by the way, she was criticised for using a particular version of a ministerial handbook, which was not only used by all her predecessors, but it was actually endorsed in the Nkandla judgment in the sense that it was used by the Constitutional Court that found nothing wrong with it. Can you punish someone for doing something which was a practice that she found in the Office and which was a genuine belief – as opposed to if she does it after the court has clarified?
Ms Zulu-Sokoni: It is in the practical implementation of the various rules and regulations that regulate this procedure that the Committee has to apply its mind. If some of the charges before this Committee concern past practices carried on from one Ombudsman to the other before she came to office and that practice now is believed to be wrong after a particular point, the Office can be allowed a chance to change those practices to operate in the way recommended by the courts.
Adv Mpofu: I think that is in the spirit that you have been calling a self-cleansing process. In other words, there should be learning at the particular point it has been declared by a court in a constitutional democracy. That is it, whether you like it or not.
Ms Zulu-Sokoni: Yes. In an instance where the Ombudsman makes recommended variances, they actually learn through the reports and from interaction with respondent institutions and the complainants as well as interaction with Parliament. By the time the Ombudsman reaches the seventh year, when they are getting really good at what they do, they are able to hand over the baton to another Ombudsman.
Adv Mpofu: Just to go back to the examples given about getting legal representation. If Parliament passes a rule that says you will not have full legal representation, and then the Constitutional Court says that you must get full representation but Parliament still denies legal representation. Is not repeating that wrong when you have been told by the highest court in the land?
Ms Zulu-Sokoni: Yes, definitely.
Adv Mpofu: Just for the sake of completion, if indeed, the judgments of the highest court are binding in the myopic sense that they are binding to everything, not just to lower courts, then there is nothing this Committee can do about it. If the Constitutional Court has said that the Public Protector, or anybody for that matter, is guilty of ABCDE, then there is nothing that this Parliament can do about that. Would there be any point in holding an inquiry? What would you be inquiring into if the charges have already found the person guilty? That is the first part of the question. Maybe let me ask you that. Would there be any point in the inquiry if it were proceeding on the basis that those judgments are the Law of Moses? If the inquiry was proceeding on the basis that those judgments cannot be interrogated, would that be a genuine inquiry? In other words, the judgments are what they are. If they say today is 24 December 2021, then we must accept that.
Ms Zulu-Sokoni: There is no a point in having an inquiry if it is based solely on court judgments. I did state before that I was of the view that the personal cost awards to the Public Protector may have been over-punitive. So if the charges are based on those court judgments, I would say that the Public Protector has already been punished and it would be doubly punishing for the person to go through an inquiry of this type.
Adv Mpofu: Ms Bawa asked if there had been a process of impeachment that had gone up to this stage or beyond which you are aware of. Your answer was that you are not aware of one. Are you aware of the court case involving the removal of the Ombudsman of Romania?
Ms Zulu-Sokoni: It has been brought to my attention. In Eastern Europe, there have been issues of Ombudsman Offices being under threat. I think there was an issue in Poland. And yes, Romania. I think there have been a couple of other countries in Eastern Europe where Ombudsman offices have been under threat.
Adv Mpofu: The rules will not allow me to take you through that in detail because I cannot introduce it in re-examination. So we will deal with it maybe when the Public Protector testifies. I will only ask you peripheral questions around it. Are you aware that in the impeachment of the People's Advocate as they call it in Romania – I think they stole it from some political party here in South Africa – and that is probably what it will be called in the future here. However, the removal of the People's Advocate in Romania by their Parliament was reversed by the court. Were you aware of that? I will not go into detail, but it will be introduced differently to the Committee. That happened on 6 July 2021.
Ms Zulu-Sokoni: Yes, I am aware. I think why I did not mention it was I suppose she asked me if I was involved in any process.
Adv Mpofu: I think in fairness to Ms Bawa, she did not ask if you were aware of any process but whether you were involved in any process.
Chairperson: Adv Mpofu, please wrap up.
Adv Mpofu: Can you confirm that you read the attachment? One of the reasons are some of the yardsticks that were used by the court to reverse the impeachment… In other words, we had a situation (in Romania) where you had a process like this, and it was taken to Parliament and the Parliament voted to impeach. But then the Ombudsperson, Ms Renate Weber, took the process to court and she succeeded because, among other things, that process did not conform to the Venice Principles and other international instruments. Are you aware of that?
Ms Zulu-Sokoni: No, I am not aware.
Adv Mpofu: We will deal with it differently. I cannot introduce that case now but I have got it and it will be introduced in a different manner. Now, I am just going back to that conflict of interest. This question was asked by Mr Holomisa and because he asked like questions, you did not answer that question. So I want to just get your answer. It was about the disclosure of the conflict of interest. When he was telling you about the spouse, he asked if that disclosure by the spouse should be to Parliament in general or to the person who is accused?
Ms Zulu-Sokoni: I would assume that if he makes a declaration to Parliament , it would be Parliament's duty to make the person who is cited aware of it. All parties need to be made aware that there is a declaration of interest.
Adv Mpofu: I do not know if you are familiar with the international cases, but even in our national cases, do you know that duty to disclose is intended so that the accused person can sometimes waive their right and agree. Therefore, if that is the correct premise, can the person have an opportunity to waive their right if they do not know? There is a problem.
Ms Zulu-Sokoni: No.
Adv Mpofu: I am aware that you are flying out very early so I am wrapping. For the sake of completion, sort of please bear with me, Chairperson. The issue of making this comparison with judges and ombudsman – and again I think you were misunderstood – you are not saying that an Ombudsman is a judge. Correct?
Ms Zulu-Sokoni: Yes, that is correct.
Adv Mpofu: You are simply saying that the status and the conditions, the independence and the protections should be fairly similar. If you were saying that the Public Protector is a judge, then why would you have been appointed through a different process – the whole point of you being appointed and the JSC and so on – is because you are not a judge. You just have the status of a judge.
Ms Zulu-Sokoni: That is correct.
Adv Mpofu: And the point of micro protections is that judges can have the most scathing judgments by a higher court against a judgment they have made, but have you ever heard of a judge being impeached for having the wrong judgment? Or to make it worse, have you heard of a judge being asked to pay personal costs to the parties because the judgment is so outrageous?
Ms Zulu-Sokoni: No.
Adv Mpofu: Lastly is the fact that the principles of justice must not only bind those who deal with the Ombudsman but must also bind the Ombudsman in their own dealings. We know that one of the principles of natural justice is audi alteram partem. Can the Public Protector be impeached for giving people audi alteram partem letters in the office, giving them a chance to explain why they have been called out? Can you actually impeach her for that?
Ms Zulu-Sokoni: No.
Adv Mpofu: Welcome to South Africa.
Chairperson : Ms Sokoni, we have reached the end of our interaction with you. I want to invite you to say your concluding remarks or last reflections. Anything you want to say to the Committee?
Ms Zulu-Sokoni: Chairperson, the work of an Ombudsman is not easy. You learn on the job as you go along. I think the principle that the Ombudsman institution issues reports which are backed by recommendations, is meant to assure a self-cleansing process, but also a process of the Ombudsman learning on the job. In this particular instance Adv Bawa pointed out to me, that the Nkandla judgment stated that the Public Protector reports may be either recommendations or they may be binding. I would like to urge you to look at that particular standard from the international instruments that we have presented before you and to consider that had these reports contained recommendations, perhaps this hearing would not have taken place. So I guess you will need to take into consideration that the standards are just persuasive. However, you can look at that issue when you are looking at the case of Public Protector.
Chairperson: Thank you, Ms Sokoni for your time, your advice and recommendations.
Adv Mpofu: I want to raise some practical difficulty that I have about my next witness so I shall need to start later tomorrow.
Chairperson: We will start tomorrow with correspondence and then move onto the next witness.
Dyantyi, Mr QR
Denner, Ms H
Dlakude, Ms DE
Gondwe, Dr M
Hendricks, Mr MGE
Herron, Mr BN
Holomisa, Dr BH
Jafta, Mr SM
Joemat-Pettersson, Ms TM
King, Ms C
Legwase, Ms TI
Lotriet, Prof A
Mahlaule, Mr MG
Majozi, Ms Z
Mananiso, Ms JS
Maneli, Mr BM
Mgweba, Ms T
Mileham, Mr K
Nqola, Mr X
Nyhontso, Mr M
Siwela, Ms VS
Skosana, Mr GJ
Sukers, Ms ME
Tlhape, Ms ME
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