Investigation Reports

PUBLIC PROTECTOR
REPUBLIC OF SOUTH AFRICA

REPORT IN TERMS OF SECTION 182(1)(b) OF THE CONSTITUTION, 1996
AND SECTIONS 8(1) AND 8(2) OF THE PUBLIC PROTECTOR ACT 1994

REPORT NO 12
(SPECIAL REPORT)

REPORT ON THE INVESTIGATION OF A PUBLIC STATEMENT
MADE BY THE PREMIER OF MPUMALANGA,
MR N MAHLANGU, ON 22 JUNE 1999

The Speaker, Honourable Members of the National Assembly, the Chairperson and Honourable Members of the National Council of Provinces, the Speaker and Honourable Members of the Mpumalanga Legislature:

I have the honour to submit a special report by virtue of the provisions of section 182(1)(b) of the Constitution, 1996 and sections 8(1) and 8(2) of the Public Protector Act, 1994, regarding my investigation of a public statement made by the Premier of Mpumalanga, Mr N Mahlangu, on 22 June 1999.

Adv S A M Baqwa, SC
Public Protector of the
Republic of South Africa
19 August 1999


TABLE OF CONTENTS

1. Introduction
2. The origin of the Investigation
3. The Executive Members Ethics Act, 1998
4. The Investigation

4.1 The background to the "lies statement" made by Mr Mahlangu
4.2 The print media reports on the "lies statement" by Mr Mahlangu
4.3 The recording of the media conference by a journalist of the SABC
4.4 The apology
4.5 The explanation by the Premier

5. Finding on the Statement made by Mr Mahlangu
6. The Provisions of the Constitution, 1996 and the Public Protector Act, 1994

6.1 The conduct of members of Executive Councils
6.2 The powers and functions of the Public Protector

7. Findings in terms of the Provisions of the Constitution, 1996 and the Public Protector Act, 1994
8. The accountability of the Premier
9. The consideration by the Mpumalanga Legislature of the statement made by the Premier
10. Recommendation

Annexure A: Report in the Star Newspaper dated 23 June 1999
Annexure B: Apology By Mr Mahlangu


REPORT ON AN INVESTIGATION OF A PUBLIC STATEMENT MADE BY THE PREMIER OF MPUMALANGA PROVINCE, MR N MAHLANGU, ON 22 JUNE 1999.

1. INTRODUCTION

This report is submitted to the National Assembly, the National Council of Provinces and the Provincial Legislature of Mpumalanga by virtue of the provisions of section 182(1)(b) of the Constitution, 1996 and sections 8(1) and 8(2) of the Public Protector Act, 1994. It deals with a public statement made by the Premier of Mpumalanga, Mr N Mahlangu, on 22 June 1999.

2. THE ORIGIN OF THE INVESTIGATION

On 23 June 1999 reports appeared in the print media that claimed that the Premier of Mpumalanga, at the first press conference held subsequent to his election, stated that it was acceptable for politicians to lie. One such report is the article that appeared in the Star Newspaper on 23 June 1999, a copy of which is attached as "Annexure A". Because of the seriousness of these reports, I decided to conduct an investigation on own initiative, in terms of the provisions of section 7(1)(a) of the Public Protector Act, 1994.

3. THE EXECUTIVE MEMBERS' ETHICS ACT, 1998

At the outset of the investigation by my office, we considered the provisions of the Executive Members Ethics Act, 1998 . Section 2 of the Act provides, inter alia, that the President must, after consultation with Parliament, by proclamation, publish a code of ethics prescribing standards and rules aimed at promoting open democratic and accountable government and with which Cabinet members, Deputy Ministers and MECs must comply in performing their official responsibilities.

According to the definition of "MEC" in section 1, it includes the Premier.

Section 2(2) provides that the code of ethics must include provisions requiring Cabinet members, Deputy Ministers and MECs at all times to act in good faith and in the best interest of good governance and to meet all the obligations imposed on them by law. It also has to prohibit:

  • the undertaking of any other paid work;
  • acting in a way that is inconsistent with their office;
  • exposing themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests;
  • using their position or any information entrusted to them, to enrich themselves or improperly benefit any other person; and
  • acting in a way that may compromise the credibility or integrity of their office or of the government.

The Public Protector is, in terms of the provisions of section 3 of the Act, obliged to investigate any alleged breach of the code of ethics on receipt of a complaint contemplated in section 4. A complaint can be lodged by the President, a member of the National Assembly or a permanent delegate to the National Council of Provinces, if the complaint is against a Cabinet member or a Deputy Minister. In the case of a complaint against a MEC (including the Premier) it should come from the Premier or a member of a provincial legislature of a province.

At the time of the investigation of the matter under discussion, the code of ethics had not been finalised and no complaint in connection with the mentioned statement by Mr Mahlangu has been lodged at my office. Although one can argue that the provisions of the Act can be interpreted to allow my office to conduct an investigation in terms of the Act, even in the absence of the code of ethics and a complaint as envisaged by section 4, I decided rather to continue with my investigation in terms of the provisions of section 7 of the Public Protector Act.

Regarding the code of ethics, I have recommended in my Report on the Investigation of Allegations of Nepotism in Government (Report No 11 dated 15 April 1999) that Parliament and the Office of the President should ensure that the code of ethics, as envisaged in the Executive Members' Ethics Act, 1998, be published as soon as possible.

The Executive Members' Ethics Act came into operation on 28 October 1998. I have noted with concern that 10 months have lapsed without any indication as to when the code of ethics will be promulgated. I am of the view that further delay will cause unnecessary uncertainty in the minds of those affected by the provisions of the Act as to exactly what is to be expected from them and/or of them. The importance of the code of ethics being finalised and promulgated without any further delay has again been emphasised by this matter. The Act seeks to ensure public accountability on the part of those holding public office. Such accountability can however, only be properly enforced where there are clearly definable ethical prescripts.

4. THE INVESTIGATION

On 28 June 1999, my office wrote to Mr Mahlangu, referring, inter alia, to the contents of Annexure A and requested him to explain also the context in which these statements had been made. The Premier responded by requesting to meet with me personally in this regard. This meeting took place on 2 July 1999 and Mr Mahlangu explained to me the context in which he had made the statement that reported him as saying that it is in order for politicians to lie. We also studied a number of the media reports regarding this statement and the responses arising therefrom. Furthermore, we requested the SABC to provide us with an unedited version of the recordings that were made at the press conference concerned. We also submitted our transcribed version of the edited tape and video recordings to the Premier for his comments.

4.1 The background to the "lies statement" made bar Mr Mahlangu

During the term of office of the former Executive Council, several allegations of maladministration and corruption had been made against the Provincial Government of Mpumalanga. A number of investigations into such matters were conducted by the office of the Auditor-General, the Heath Special Investigating Unit and my office.

At the press conference held by the Premier on 22 June 1999, questions were asked by the media, inter alia, in connection with the re-appointment of Mr J Modipane as a Member of the Executive Council. Mr Modipane was at the centre of a controversy at the time of the media conference. It was being alleged that he signed three promissory notes to the value of R340 million, in his capacity as MEC, in terms of which government game reserves were to be provided as collateral for investments by the private sector. These promissory notes had been issued without the required approval of the Reserve Bank or the central government. It was alleged that Mr Modipane at first denied having signed the promissory notes, but that he later admitted doing so. The matter is presently the subject of an investigation by the Office for Serious Economic Offences and the Heath Special Investigation Unit. The media (and the public) was interested to know how the Premier felt about the alleged lie told by Mr Modipane in connection with the promissory notes.

4.2 The print media reports on the "lies statement" by Mr Mahlangu

Apart from the report in the Star (Annexure A), many of the leading newspapers in the country reported on the so called "lies statement". The Daily Dispatch of 23 June 1999, for example, had a headline which read: " Lying OK in politics says premier". In the related article Mr Mahlangu was quoted as follows:

"It is nothing new. Many politicians publicly deny they did certain things, but then later admit to them. It is accepted and is not unusual anywhere in the world. It wasn't the end of Bill Clinton's life and I personally don't find it to be a very bad thing"; and

"I am not saying that it was correct, but Modipane was not acting as an individual at the time. He was following instructions and cannot be held personally responsible."

The Sunday Times of 27 June l 999 quoted Mr Mahlangu as having said in this regard:

"Many politicians deny they did certain things, but then later admitted to them. It is accepted and not unusual anywhere in the world. It wasn't the end of Bill Clinton's life and I personally don't find it to be a very bad thing."

4.3 The recording of the media conference by a journalist of the SABC

In order to obtain the most reliable evidence of exactly what was said by Mr Mahlangu at the media conference and the context in which he had made the controversial statements, I requested Rev H A W U Mbatha, the Group Chief Executive of the SABC, to provide me with a copy of the recording made by a journalist of the SABC at the media conference. I was only provided with a copy of the material pertaining to the press conference that had been broadcast.

From the audio and video recordings of the media conference, we are satisfied that Mr Mahlangu, inter alia, said the following:

"Now what I am trying to say is that the allegation is a simple one, whether he signed the promissory notes or not. Mr Modipane has already admitted, after he has denied before, of course, that he did sign the promissory notes. I am not taking that as an individual matter. I am looking at it holistically, as I indicated yesterday in a media briefing. Holistically in the sense that Mr Modipane wasn't acting in isolation, I repeat again.... The matter is a simple one, Mr Modipane was not acting as an individual in the Dolphin matter or in the promissory notes affair. It was a provincial matter. It was acting as a collective. It was a provincial government matter. And by so saying I don't say that was correct: It was incorrect, but then you cannot take the blame and put it on the individual where he was acting in a representative capacity. He was not, for instance, doing that for his family - signing the promissory notes for his own family to get X, B, C. I mean, the information I have is that he was acting in a representative government ... authority, for the provincial government, whether or not that was correct, and I declare it incorrect. But then, is it fair to punish him as an individual when he was acting in a representative capacity. That is the question I had in my mind."

and

"I have heard many people denying, not only politicians, many people denying certain things and admitting later on. It is not unusual. And not just in South Africa - it also happens overseas. I have heard, for instance, in America, the President of the country denying certain things before and admitting them thereafter. So that's not new to me, that somebody did deny something and admit it later on. It's not a new thing to me. In a society you do find that and even in politics you do find that. I am not saying that it is correct - to deny a thing and then to admit it later on - but it is not unusual to find such a thing. And I've not seen it being a grievous mistake to send that person to the guillotine because of that. I've seen President Clinton deny certain things, but that was not the end of his life. The circumstances of denial are important. It matters what causes a person to deny. I am not sure whether it was frustration if a person eventually feels 'I must admit what I've done', and he admits. I don't find it to be a very bad thing."

As the recordings that we received from the SABC have been edited, my office submitted them to Mr Mahlangu for his comments. In response, Mr S Nyaka, Special Adviser to the Premier, faxed a letter to my office in which he states that: "(t)he Premier is of the opinion that the audio and video clips have been edited in such a way that we do not get the context of the excerpts, e.g. the question preceding the excerpts is not included. We are also not sure if the statement preceding the one on the clip or even the one following the clip does not put the excerpt in a proper context" and "(c)onsequently the Premier is not prepared to certify this edited and out of context report as accurate."

4.4 The apology

On 23 June 1999 Mr Mahlangu issued a press statement in which he apologised for "the unfortunate statement" made at the media conference the previous day. A copy of the press release is attached as "Annexure B".

4.5 The explanation by the Premier

Although my office initially requested Mr Mahlangu to provide me with a written explanation in connection with the statements that he had made at the media conference, he preferred to discuss the matter with me personally. During our meeting he explained that he was quoted out of context and that his response to a question as to whether or not it was acceptable for a person to lie did not refer to Mr Modipane in particular, but to people in general. Mr Mahlangu also emphasised during our meeting that it is in fact completely unacceptable to him that a person should lie and that he pertinently stated his conviction in this regard at the media conference.

5. FINDING ON THE STATEMENT MADE BY MR MAHLANGU

From the investigation conducted by my office, I am satisfied that Mr Mahlangu made the statements quoted in paragraph 4.3 above at the media conference on 22 June 1999. I also find that he has been misquoted in general as saying that it is in order ("OK") for politicians to lie, when in fact he did state that: "I am not saying that it is correct...". However, Mr Mahlangu went further and stated, with reference to Pres. Bill Clinton, that "the circumstances of denial are important. It matters what causes a person to deny. I am not sure whether it was frustration if a person feels I must admit what I have done, and he admits. I don't find it to be a very bad thing".

I am of the view that a conclusion that it is Mr Mahlangu's conviction that lies could be justified under certain circumstances and that it would not be "a very bad thing" would be a reasonable one, considering this statement. That was obviously also in the mind of the Premier when he apologised for "the unfortunate statement". The responses by the public in general, as reflected by subsequent media reports, have also been indicative of general disapproval of this statement.

As far as the editing of the recordings is concerned, I am satisfied that it has not been done in such a way that the quoted statements made by Mr Mahlangu have been distorted to an extent to which what he had said could mean anything other than the interpretation generally afforded to them by media reports. I am also of the opinion that no context in which such a public statement could have been made by a person in the position of a Premier, can either explain away or justify what has been said.

Mr Mahlangu was given an opportunity to comment on or to contextualise the statements he made to the media. He failed to do so in a manner that would persuade me to accord a different meaning to the words quoted. Mr Mahlangu is a legally trained person and in this investigation he has been assisted by his legal advisers. If a different context or meaning were to be accorded to Mr Mahlangu's statement, they would have had no difficulty in articulating such meaning or context.

6. THE PROVISIONS OF THE CONSTITUTION, 1996 AND THE PUBLIC PROTECTOR ACT, 1994

6.1 The Conduct of Members of Executive Councils

Section 136(1) of the Constitution provides that members of the Executive Council of a province (which includes the Premier) must act in accordance with a code of ethics prescribed by national legislation. The code of ethics has not been promulgated as yet.

Section 136(2) provides:

"Members of the Executive Council of a province may not

  1. undertake any other paid work;
  2. act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or
  3. use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.

From the provisions of section 136(2), it is clear that standards of conduct have been prescribed for members of Executive Councils, over and above what the code of ethics might provide. In the matter under investigation, I had to determine whether the statement made by Mr Mahlangu on 22 June 1999 was an action that "is inconsistent" with his office, as contemplated by section 136(2)(b).

6.2 The powers and functions of the Public Protector

Section 182(1) of the Constitution, 1996, provides that:

The Public Protector has the power, as regulated by national legislation

  1. to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
  2. to report on that conduct; and
  3. to take appropriate remedial action.

"Appropriate remedial action" has been further defined by the provisions of the Public Protector Act that provides in section 6(4) (c) that the Public Protector shall be competent, at a time prior to, during or after an investigation, if he or she deems it advisable, to refer any matter which has a bearing on an investigation, to the appropriate public body or authority affected by it or to make an appropriate recommendation regarding the redress of the prejudice resulting therefrom or to make any other appropriate recommendation he or she deems expedient to the affected body or authority.

7. FINDINGS IN TERMS OF THE PROVISIONS OF THE CONSTITUTION, 1996 AND THE PUBLIC PROTECTOR ACT, 1994

I am of the view that the statement made by Mr Mahlangu, as referred to in paragraph 5 of this Report, is unbecoming of a member of an Executive Council. I find the statement to be inconsistent with the office of a premier in that it compromises the credibility or integrity of his office and of government. I accordingly find it to be in violation of the provisions of section 136(2)(b) of the Constitution. I have come to the conclusion that the conduct of Mr Mahlangu in making this statement was improper as contemplated by the provisions of section 182(1)(a) of the Constitution read with section 6(4)(a)(ii) of the Public Protector Act.

8. THE ACCOUNTABILITY OF THE PREMIER

Section 133(2) of the Constitution provides that members of the Executive Council of a province are accountable collectively and individually to the legislature for the exercise of their powers and the performance of their functions. Subsection (3) provides, inter alia, that members of the Executive Council of a province must act in accordance with the Constitution.

The legislature of a province is empowered by the provisions of section 130(3) of the Constitution to remove the Premier from office. That can only happen on grounds of -

  1. a serious violation of the Constitution or the law;
  2. serious misconduct; or
  3. inability to perform the functions of office.

The Constitution does not provide for accountability of a Premier to any body or person other than the provincial legislature.

9. THE CONSIDERATION BY THE MPUMALANGA LEGISLATURE OF THE STATEMENT MADE BY THE PREMIER

According to the acting Secretary of the Provincial Legislature, the statement made by the Premier has neither been debated in the Legislature, nor is there any indication that it will be discussed. I am of the view that the Legislature has a constitutional obligation to call on the Premier to account for his actions in making the statement in question and that, in so doing, the Legislature should consider the provisions of sections 130(3) and 133(2) of the Constitution. As the Legislature is the body to whom the Premier is accountable and as the Legislature has not applied its mind in this regard, I have decided to recommend that the matter be put on the agenda of the Legislature, and be dealt with in terms of the applicable rules and orders. This will ensure that the democratic process of accountability provided for by the Constitution, is properly adhered to.

I am of the opinion that the apology by the Premier, issued as a press release on 23 June 1999, does not in any way affect his accountability to the Legislature. The apology was not made to the Legislature or the provincial or national government, but to the "ANC, the people of Mpumalanga and the nation as a whole". Mr Mahlangu's responsibilities and allegiance to his political party and his responsibilities as premier and head of government of the Mpumalanga Province must always be clearly demarcated and kept in mind. My investigation and recommendations pertain to his latter capacity.

10. RECOMMENDATION

In terms of the provisions of section 182(1)(b) and (c) of the Constitution, 1996, and the provisions of sections 6(4)(c)(ii) and 8(1) and (2) of the Public Protector Act, 1994, I recommend that:

  1. that the Speaker of the Mpumalanga Legislature takes the necessary steps to ensure that the statement made by Mr Mahlangu on 22 June 1999 and that is referred to in paragraph 5 of this report, be raised in the Legislature with a view of passing a resolution regarding the accountability of the Premier and any possible sanction that the Legislature considers appropriate, which should, at least, comprise a strong reprimand or a motion of censure.

  2. that the Speaker ensures that the matter referred to in paragraph (a) be raised in the Legislature at the earliest possible sitting of the Legislature following the tabling of this Report; and

  3. that Parliament and the office of the President attend to the finalisation of the code of ethics as envisaged by the provisions of the Executive Members Ethics Act, 1998, as a matter of urgency.

 

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