By: Nic Herd
To paraphrase the well-known rejoinder of Alfred Pennyworth in dialogue with Bruce Wayne (Batman), from The Dark Knight (2008): Unfortunately, some are happy to watch the world burn.
We have all borne witness to a willingness to participate in or overlook wrongdoing within and without South Africa’s government – some of the most horrifying of which has occurred since the outbreak of the COVID-19 pandemic, a desperate time of especially confounding greed and indifference by those guilty of corruption.
With all of the ombudsmen, tribunals, inquiries and commissions at work across the country, and the incumbent Public Protector under fire, one might be forgiven for concluding that there exists a constitutional duty to investigate and respond to impropriety. Take the remarks of the Constitutional Court in the Nkandla judgment for example: The Constitution seeks to ‘make a decisive break’ from the ‘unchecked abuse of [s]tate power and resources that was virtually institutionalised during the apartheid era’, that accountability, responsiveness, openness and the rule of law are foundational values of our constitutional order, and that ‘constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck’.
However, the Constitutional Court relatively recently decided otherwise, conflicting with several of its own decisions on the point — creating an unfortunate degree of uncertainty.
In late 2018, the Constitutional Court handed down judgment in Hunter v Financial Sector Conduct Authority and Others. The case concerned a programme of the Financial Sector Conduct Authority (FSCA) to cancel pension funds which had become ‘orphaned’ or defunct (i.e. ‘funds that do not have properly constituted boards and often have no assets or liabilities’). The FSCA commissioned several investigations into irregularities in the programme, but the applicant asserted that none of those investigations were adequate; that a sizeable portion of the impropriety remained undiscovered; and that the FSCA had an obligation to adequately investigate and rectify the alleged irregularities. On this last score, a majority of the Constitutional Court found that:
The Constitution does not impose a general duty on public functionaries to investigate irregularities pertaining to the exercise of public power. The exercise of public power is controlled by means of review […] [in] special circumstances [this Court has held] that officials in the public administration have a duty to investigate and correct unlawfulness…
In the above passage, the Court denies the existence of a general, constitutional duty to investigate impropriety and relegates any constitutional investigatory obligation to ‘special circumstances’ without any real explanation – not of what special circumstances are, why the circumstances in other cases are special, or why the circumstances in Hunter are not special. It is because of the Hunter’s bald and explicit denial that constitutional recognition of the duty to investigate generally is jeopardised and uncertain.
I consider this finding of the Constitutional Court majority in Hunter to be wrong, for several reasons.
Investigations have multiple roles, from prevention of wrongdoing through deterrence or uncovering of any impropriety, to information and evidence collection for remedial purposes and the adaptation of systems to improve risk management. In essence, they allow affected parties and responsible authorities to learn what they do not know: the truth. When investigations are not initiated – or if any investigation is inadequate – all or some of the irregularities would remain hidden. Conversely, adequate investigations – through gathering facts, evidence and information – enable authorities to locate the root causes, establish the full scope and depth, diagnose the nature of and ultimately treat potential irregularities.
An investigatory obligation would also dovetail with several of the state’s responsibilities under the Constitution, e.g.: to undo unlawfulness under the principle of legality and founding value of the rule of law (section 1(c) of the Constitution), to ensure a healthy, responsive, transparent and ethical public administration (in terms of the Batho Pele principles enumerated at section 195 of the Constitution), and to provide access to information (section 32) and reasons for administrative action (section 33). In particular, access to important information dredged-up by investigations would place parties challenging state conduct on a more equal footing with public officials who might otherwise enjoy self-serving monopolies over crucial information.
And the Constitutional Court has recognised the constitutional need to investigate prior to, and arguably since, its decision in Hunter.
In 2014, the Court handed down judgment in Khumalo v MEC for Education KwaZulu-Natal. In Khumalo, the KZN MEC for Education was challenging an employment decision of her own department. The Court explained that –
When, as in this case, a responsible functionary is enlightened of a potential irregularity, section 195 lays a compelling basis for the founding of a duty on the functionary to investigate and, if need be, to correct any unlawfulness through the appropriate avenues. As bearers of this duty, and in performing their functions in the public interest, public functionaries must, where faced with an irregularity in the public administration, in the context of employment or otherwise, seek to redress it. This is the responsibility carried by those in the public sector as part of the privilege of serving the citizenry who invest their trust and taxes in the public administration.
In the passage above, the Constitutional Court clearly placed a duty on public functionaries to both investigate and cure irregularities, with the duty applying in all circumstances, irrespective of the field of law. This is in sharp contrast to the finding in Hunter.
In Merafong City Local Municipality v AngloGold Ashanti Limited (2016) the Constitutional Court relied on Khumalo in observing that ‘state functionaries are enjoined to uphold and protect the rule of law by, inter alia, seeking the redress of their departments’ unlawful decisions’ and that ‘[g]enerally it is the duty of a state functionary to rectify unlawfulness’. The Court also quoted the crucial passage (above) from Khumalo establishing the investigatory obligation. A ‘general’ injunction to ‘uphold and protect the rule of law’ in the context of Merafong, means requiring from the government: adherence to the law, avoiding self-help and the diligent launching of judicial review proceedings. The injunction is not only wide enough to include an implied duty to investigate, but with Merafong relying on Khumalo, it must be read to incorporate such a duty.
The Court then, in 2019 after Hunter, again affirmed Khumalo. The Court in Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited, citing both Merafong and Khumalo, observed that as ‘constitutional citizen[s]’, public functionaries ‘are subject to a higher duty to respect the law’ and that the organ of state ‘ought to have become aware [of the irregularity] much sooner than it did’. Again, in order for the state to know about irregularities, it must discover these by watching out and taking steps. In this, the Constitutional Court recognises the duty as an active one: A duty to be vigilant and attentive, and to take timely action (i.e. investigate) to ‘become aware [of and rectify irregularities] much sooner’, to the ends of rectifying irregularities and upholding the rule of law.
The only justification offered by the majority in Hunter for its conclusion that there exists no general, constitutional obligation to investigate in that public power is ‘controlled by means of review’, not investigation. This logic treats the two processes as two mutually exclusive options – which they are not.
Investigations and judicial review proceedings are complimentary: Investigations are the means to an end and any judicial review is an end in itself. Investigations do not by themselves directly control public power: they enable authorities to find out more about how the power was exercised; to take other steps or initiate other processes to prevent or rectify irregularities before judicial review becomes necessary; and provide information and evidence to sustain judicial review proceedings — which is the possible end to which other steps, remedies or processes (i.e. investigations) might be undertaken. Arguing that there is no duty to investigate because a lawsuit option exists would be a bit like saying that government should not adopt more effective measures to control the manufacture, use or ownership of guns, that we should do less prevention and more waiting until the bullet has left the chamber to deal with its consequences, and that reporting a murder to the police — for investigation and possible arrest — is not altogether necessary because a victim has resort to prosecution. Practically and legally it makes no sense. In short, the availability of remedies in judicial review — serving as an ultimate control on public power — is no reason at all why preceding, valuable investigations cannot or should not be required by law.
The above legal arguments on the uncertainty of the state’s obligations are underscored by the historical and current prevalence of corruption throughout the South African government in all of its spheres; the fact that the poor and vulnerable — and inequality generally – are worsened by the scourge of impropriety; and that the threat of unchecked power and wrongdoing pose to our constitutional order.
I do not propose the constitutional recognition of a duty to investigate as a perfect ‘fix-all’ or isolated solution. But for as long as Hunter exists as a barrier – or can be used as a barrier – to the enforcement of the general, constitutional obligation to investigate, it will impede accountability and mandatory self-correction by the state. The Constitution does not permit those entrusted with the vast powers of the state, and clothed in the trust of its people, to watch the state burn. The Constitution demands adequate and effective investigation to extinguish fires already raging and prevent future flames.
*Under the circumstances in which South Africa finds itself presently, I thought it appropriate to adapt an essay derivative of my LLB dissertation for my first blog post (omitting several critiques and commentaries in the process).
**I also want to acknowledge my LLB dissertation supervisor, Dr Melanie Murcott (Senior Lecturer, University of Pretoria), for her role in bringing my dissertation (and indirectly, this post) to fruition.