It is interesting to observe how human bias – especially when people have gone into “groupthink” or “mob mode” – causes blindness toward the errors of some and a magnification of the errors of others. When we believe that someone is “like us”, “thinks like us”, their mistakes very easily become invisible to us. That is not something we would easily recognise in ourselves, much less openly admitting that our bias steered our thinking. I believe Psychologists call it “cognitive bias”.

There is a present day example of cognitive bias playing out in front of us, which I have been observing with much interest. It reminds me of Charles Dickens’ A Tale of Two Cities. Many South Africans are probably aware of the lengthy opening sentence in that book. But most of those who cite excerpts of the sentence have probably never actually read it – or the book.

Its “best of times” and “worst of times” oft-quoted opening salvo apart, the less talked about aspect of the book is the contrasting motifs by which Dickens depicts London as a calm and peaceful city, but Paris as mired in violent tumult. People rarely ever ask why; and when they do, the speculative answer that is often offered is that the book depicts the historical events of the revolution in France.

But the book is set in 1775. The French Revolution was still some 14 years in the future. When it started, Dickens had not even been born. When it ended, he was all of 13 years old. But why ruin a good narrative with facts? The contrast between Paris and London is a theme of the book. Any fact that spoils that theme just would not do.

Now, fast forward some 244 years, to the southern part of the African continent, and you find much of the same: facts getting in the way of a good yarn intended to depict one Public Protector as representing the Dickensian “age of wisdom” and the other “the age of foolishness”.

The inconvenient truth is that both Madonsela and Mkhwebane have been prone to both moments of wisdom and moments of foolishness. The difference is that – for reasons about which it would be foolish to speculate – Madonsela’s moments of foolishness have drawn little or no censure, while Mkhwebane has virtually been burnt at the stake for hers, even by people who have not bothered to read her reports, relying instead on media reports or commentary as their only source of information for the contents of the Public Protector’s reports.

Parallels are often drawn between Mkhwebane and Madonsela and, more often than not, it is concluded that Madonsela was the Gold standard and that Mkhwebane is failing miserably at her job. But are all the facts taken into consideration when this conclusion is drawn, or is cognitive bias toward Mandonsela making her mistakes invisible? Let us look at some of the facts that have been overlooked for fear that they will spoil the intended contrast between two perfectly capable women.

Instruction to the Special Investigating Unit

In one of her provisional reports, Madonsela took remedial action in which she instructed the head of the SIU to

“conduct a forensic investigation into serious maladministration in connection with the Vrede Dairy Integrated Project of the Free State Department of Agriculture, the proper conduct by officials of the Department and the unlawful appropriation or expenditure of public money or property with the view of the recovery of losses by the State” [sic]

This remedial action was legally incompetent because Madonsela purported to issue an instruction to the SIU.  She had no power to do that.  No one attacked her competence for this. It did not even make page 5 of the Sunday tabloids.

Section 5(6)(b) of the Special Investigating Units and Special Tribunals Act, 74 of 1996 (“the SIU Act”) confers on the Public Protector only the power to refer a matter to the SIU that falls within its terms of reference.  It does not confer upon the Public Protector the power to instruct the SIU to conduct a forensic investigation. It is the President who has the power to establish a SIU for purposes of mounting an investigation.

Madonsela did not end there. She also instructed that the SIU reports to her periodically on the progress of the SIU investigation. That she did not have the power to do. Again, she overreached. The SIU does not report to the Public Protector, and Madonsela did not have the power to monitor its investigation.  The SIU Act does not impose an obligation on the SIU to report to the Public Protector. No one attacked Madonsela’s competence for this overreach. Not the Minister of Finance; not the media; not the many NPOs that have now found their voice to attack Mkhwebane.

Contrastingly, in her 19 June 2017 report on the South African Reserve Bank, Mkhwebane referred to the SIU the matter of the recovery of the Billion Rand debt arising from a loan that the Reserve Bank had granted to Bankorp (since acquired by ABSA Bank) many years ago. She did so expressly “in terms of section 6(4)(c)(ii) of the Public Protector Act”, and because she appears to have been alive to the fact that she did not have the power to instruct the SIU.

On 16 February 2018, some 8 months after Mkhwebane had already decided that she does not have the power to instruct the SIU, the Full Bench of the High Court (three judges) confirmed that this provision (1) does not empower the Public Protector to instruct the SIU and (2) that it empowers her only to refer a matter to the SIU. No one highlighted Mkhwebane’s wisdom in this respect. Instead, the Reserve Bank – in concert with National Treasury and Absa Bank – attacked her, effectively for her temerity to hold them accountable on the recovery of public funds from a commercial bank. The media cheered on. No organ of state came to her defence despite the Constitution in section 181(3) directing that organs of state must (not “may”) “assist and protect [the Public Protector] to ensure [her] independence, impartiality, dignity and effectiveness”, and section 181(4) directing that “No person or organ of state may interfere with the functioning of [the Public Protector”.

In her final report of 8 February 2018 on the Vrede Dairy Farm project, Mkhwebane removed Madonsela’s remedial action by which Madonsela had unlawfully instructed the SIU to conduct a forensic investigation into serious maladministration. Mkhwebane did so because she knew she had no power to instruct the SIU, as the Full Bench of the Pretoria High Court was to confirm a week later. Instead of commending her, the official opposition attacked her for this in court papers. The media cheered on. No apology was extended to Mkhwebane after the Full Bench had confirmed the correctness of her legal position. Not even an acknowledgment.

Instruction to the Auditor-General

Quite apart from Madonsela’s overreach in instructing the SIU to conduct a forensic investigation, she also overreached in instructing the Auditor-General to perform a function the Auditor-General did not have the power to perform. No one attacked her competence for that.

Madonsela instructed the Auditor-General in her provisional Vrede Dairy Farm report to perform “a forensic and due diligence audit” which, she directed, would be “monitored on a bi-monthly basis” by the Public Protector.

But a proper reading of section 5(1)(d) together with section 29 of the Public Audits Act does not countenance the Auditor-General performing “a forensic and due diligence audit” at the behest of the Public Protector and being “monitored on a bi-monthly basis” by the Public Protector.  There are numerous indicators in this regard in both provisions.  Here are some of them.

  • First, when the Public Audits Act talks of “investigations or special audits” the word “investigation” must be read within the context of “special audit”. The sections do not create a new non-audit function for the Auditor-General, thereby turning the Auditor-General into some sort of super investigative unit.
  • Second, the Auditor-General cannot in any event perform a forensic and due diligence investigation into an organ of state which he is ultimately constitutionally mandated to audit [see s 5(1)(a)(i) of the Public Audits Act]. If he were permitted to do that, an untenable conflict of interest would result, with the Auditor-General (or his office) ultimately auditing his (or its) own forensic investigation that he (or it) would have done under section 5(1)(d) of the Public Audits Act. It is precisely this sort of blurred lines that have given rise to “accounting and audit irregularities” in the audit profession and which are the subject of investigation by the South African Institute of Chartered Accountants (SAICA) and the Independent Regulatory Board for Auditors (IRBA).
  • Third, it is clear from a plain reading of section 29(3) of the Public Audits Act that the section does not envisage investigations of the kind ordered by Madonsela.
  • Fourth, the Auditor-General can only perform “other functions” if his role as Auditor-General and independence will not be compromised [see s 5(1)(a) of the Public Audits Act]. Madonsela’s remedial action instructing the Auditor-General to commission a forensic and due diligence audit was coupled with a reporting obligation and ongoing monitoring by the Public Protector. This runs counter to the Public Audits Act as it would compromise the Auditor-General’s independence if the Auditor-General now has to account to the Public Protector.

There are numerous other misdirections – some more glaring than others – of which Madonsela has made herself guilty over the years. To chronicle them here might risk turning this contribution into a Madonsela-bashing affair. It is not. Her competence should not be attacked for her numerous misdirections. All lawyers err from time to time in their interpretation and application of the law. The courts are there to determine disputes where there is a difference of opinion as regards the proper interpretation and application of the law. Even the High Court and the Supreme Court of Appeal err. That is what the Constitutional Court is there to put right – as the apex court.

Some of the Constitutional Court’s decisions have themselves been the subject of criticism, most recently the judgment in Jacobs and Others v S. This was not the first. It is not the last either. The Constitutional Court will err again. The Public Protector will err. High Court judges will err. So will Judges of Appeal.

Other Facts

Hardly ever mentioned in the wholesale attacks on Mkhwebane is that some of the investigations and reports that she has had to defend were done on Madonsela’s watch. She has been attacked even on issues in relation to which Madonsela had made the same finding but was not attacked.

Examples of this arise in respect of the Vrede Dairy Farm report. In her provisional report Madonsela declined to investigate cattle deaths and value for money allegations. So did Mkhwebane, who gave the same reasons advanced by Madonsela for declining investigation of these issues. She was attacked for this. Madonsela was not.

Mkhwebane was attacked by the official opposition for investigating 3 issues in relation to the Vrede Dairy Farm project. Madonsela investigated 4 issues and was not attacked. All those 3 issues that she investigated had also been pursued by Madonsela whose term ended before finalising the investigation.

When Madonsela told the Pretoria High Court that she does not have sufficient resources to investigate “State of Capture” and, for that reason, the High Court should direct the establishment of a Commission of Inquiry, there was groundswell support for her. The official opposition even filed papers in court supporting not only the establishment of a Commission of Inquiry into “State of Capture” but also Madonsela’s complaint that she lacks sufficient resources.

But when Mkhwebane raised the same resource constraints as a reason for not being able to pursue some investigations timeously, she was attacked, including by the official opposition in court papers.

In March 2018, Mkhwebane prevailed in the Supreme Court of Appeal on an important principle of law. The principle was whether the remedial action or conduct or report of the Public Protector can be reviewed and set aside under PAJA. Mkhwebane said it could not because her remedial action does not constitute administrative action. The Supreme Court of Appeal agreed in Minister of Home Affairs and Another v Public Protector of the Republic of South Africa 2018 (3) SA 380 (SCA) at [36]-[37]. No drum rolls for her.

In a subsequent case, when another of her reports was attacked only under PAJA, Mkhwebane raised the issue again pointing to the decision of the SCA as being the complete answer to the entire application. The court agreed, but promptly afforded the applicant an opportunity to amend her papers so as to attack Mkhwebane’s report under the principle of legality that the applicant had failed to plead in her papers.

The applicant was represented by two Counsel, including Senior Counsel. Neither she nor her Counsel was minded to amend her papers so as to smoothe the PAJA wrinkle. The court simply decided that she should. Mkhwebane stoically did not complain.

To Close

When lawyers err in their interpretation and application of the law, they are not thereby demonstrating their incompetence or unfitness. It is unhelpful in the protection and development of a democratic state for one Public Protector to be lauded as a saint despite her shortcomings, and another to be vilified for what she is perceived to represent, merely for being human like all other arbiters of fact and law.

It is us, the public, who are in need of some serious introspection. The questions we should ask ourselves are these: Are we not running the risk of creating a  tale of two Public Protectors which may very well impact negatively on the ability of this crucial constitutional institution to function effectively? Is there not a danger of this malaise spreading to other constitutional institutions if we continue defining them by the cognitive bias we hold of the persons who lead them?