By Sipho Seepe

In the last few days, I found myself having to narrate one of the useful conversations that I had with former President Nelson Mandela. Mandela recalled being rebuked by Reverend Kenneth Meshoe on a deeply personal matter. Members of the ANC were visibly outraged and ready to pounce on Meshoe. Painful as the rebuke was, Mandela implored ANC parliamentarians to leave Meshoe alone. He remarked that “there is nothing that Reverend Meshoe can say and do” that will take anything from him.
Mandela was spot on. That unfortunate incident ended up saying more about Mandela’s character than it did about honourable Meshoe. From time to time, we must reckon with the trials and tribulations that life throws at us. These trials are lessons of life. Carefully handled, they can be turned into opportunities. Indeed, one cannot be a skilful pilot or great sailor without going through storms. Uncomfortable situations reveal the characters of concerned parties.

Arguably, the malicious onslaught of attacks one has had to contend with says more about the characters involved. Blatant lies, half-truths, distortions, and defamation of character, no matter how many times these are repeated, would take nothing from one. If anything, one must sympathize with such characters for it takes one to be empty, bitter, and very unhappy to invest so much energy to try to assassinate other people’s lives. This is a kind that has become impervious to both truths and facts. They are beyond redemption and cannot help themselves.

Indeed, the laws of physics suggest that “if people are trying to bring you down, it only means one thing; you already are above them”. Successful people are a lot more focused on achieving their dreams than worrying about other people. Without trying to sound arrogant, it is worth stating that some of us got to where we are despite the challenges that apartheid imposed on us.
None of my detractors will take away the fact that I have a doctorate and two master’s degrees, one from Wits in Physics and one from Harvard University. Neither will they take away the fact that I am a recipient of the Senior Fulbright Scholarship and Harvard Fellowship, and that I held visiting professorships abroad. I also had the privilege to serve on a three-person Judicial Commission of Inquiry. We must always remind ourselves of the fact that it is most likely that “some people don’t like you just because your strength reminds them of their weakness. Don’t let hate slow you down.”
As regards the matter involving suspended Public Protector, Advocate Busisiwe Mkhwebane, we have adopted a posture that Martin Luther King Jr so eloquently stated. King Jr argued that “there comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must take it because conscience tells him it is right.”

Elsewhere King Jr. remarked: “The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.” We have found ourselves emboldened by the above dicta at a time when most people have preferred sounds of silence in the midst of blatant expression of injustice. Advocate Mkhwebane is experiencing what the ANC experienced during the early years of South Africa’s democracy. Mandela observed then: “the matter has become clear that the bulk of the mass media in our country has set itself up as a force opposed to the ANC…. [and that the] majority has no choice but to rely for information and communication on a media representing the privileged minority.”
Fast forward, it is Mandela’s ANC that has joined forces with the media and the Democratic Alliance in representing the interests of powerful minorities.

The protection of minority interests manifests itself glaringly through the posture of indifference that the so-called civil society organisations take when it comes to Advocate Mkhwebane.
Organisations that were at the forefront in pontificating about the right to know have become deafeningly silent when it comes to the CR 17 funding. Instead of supporting Advocate Mkhwebane’s efforts in unravelling the mystery behind these efforts, they have miraculously gone underground.
Disappointingly, but not surprisingly, the judiciary has by and large also jumped on the bandwagon. None other than the Constitutional Court raised this concern. In Public Protector v Commissioner for the South African Revenue Service and Others (CCT63/20) [2020] ZACC 28; 2021 (5) BCLR 522 (CC); 2022 (1) SA 340 (CC) (15 December 2020) the apex court noted that “there appears to be a developing trend of seeking personal costs orders in most if not all matters involving the Public Protector.”

It observed that what “made one of those cases stand out was that a personal costs order was granted based on the “usual rule” that costs follow the result, with no consideration whatsoever of special circumstances that justified the order. This is a far cry from the stringent test for the award of personal costs orders.”
More chillingly the Constitutional Court noted that in one case, the High Court – in its conclusions “– has carefully selected and used epithets and particular nouns that are suited to awards of personal costs orders, but there is not a scintilla of evidence to support those epithets and particular nouns and, therefore, the conclusions.”
The provision of services by external consultants is nothing unusual. Most institutions tend to be inwardly looking. Getting outside expertise is complementary. The determination of value is always a subjective matter. In addition, Treasury Rules allow Consultants to sub-contract. In this regard, Practice Note Number SCM 3 of 2003 points out that “consultants may associate with each other to complement their respective areas of expertise, or for other reasons. Such an association may be for the long term (independent of any particular assignment) or a specific assignment. The “association” may take the form of a joint venture or a sub consultancy”.

Contrary to what is widely parroted in the media space, the use of communication experts in litigation is common. Courts ruled on this matter. In some cases, going as far as to suggest that communication between a communications consultant and lawyers is in certain circumstances protected by the attorney-client privilege. In a case, Grand Jury Subpoenas, 265 F. Supp. 2d 321, 322-23 (S.D.N.Y 2003) involving the famous Martha Stewart the court held that “the ability of lawyers to perform some of their most fundamental client functions . . . would be undermined seriously if lawyers were not able to engage in frank discussions of facts and strategies with the lawyers’ public relations consultants.”

The above court relied on the earlier judgement Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991. US Supreme Court Justice Kennedy’s plurality opinion in Gentile v. State Bar of Nevada argued. “An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of the indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives.”

Professor Seepe is the Deputy Vice-Chancellor: Institutional Support at the University of Zululand.

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