The Public Protector - a Jewel in South Africa's Constitutional Crown

Introduction

The Office of the Public Protector (PP) is not beyond review or criticism. We live in a constitutional democracy.  But there is an important line that needs to be drawn beyond which criticism can degenerate into abuse whether of the incumbent or the office.

South Africa’s post-Apartheid Constitution sought to create independent bodies that would ultimately realise and, importantly, protect the underlying principles of transparency, accountability, respect for Human Rights and the Rule of Law which it embodied. Chapter 9 institutions were deemed to be important balances to help prevent new forms of tyranny from arising. Section 181 identifies a number of important bodies: Office of the Public Protector; the South African Human Rights Commission; the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; the Commission for Gender Equality; the Auditor-General; and the Electoral Commission.

Section 181 also declares that these bodies must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. The Section is explicit that other organs of state, through legislative and other measures, must assist and protect these institutions to ensure their independence, impartiality, dignity and effectiveness. While accountable to the National Assembly it is clear that no person or organ of State may interfere with the functioning of these institutions.

The Public Protector 

The PP is specifically considered in Section 182 where it is charged with investigating any conduct in state affairs, or in the public administration in any sphere of government, reporting on that conduct and, where appropriate, taking the necessary remedial action. These tasks constitute the constitutional mandate of the PP. This mandate is disseminated through the plethora of legislation which confirms the PP [1]. The reports are to be made public, subject only to specifically formulated legislation which may prohibit publication.

Empowering legislation

The Public Protector Act provides for matters incidental to the office and duties of the PP. Section 1A(1) prescribes the creation and continuation of the PP. Section 6 provides that any matter over which the PP has jurisdiction may be reported to the PP by any person.

Section 6(4) delineates the areas of competence. These include maladministration in connection with the affairs of government; improper conduct by a person performing a public function; improper or dishonest conduct as referred to in certain parts of the Prevention and Combating of Corrupt Activities Act; improper enrichment or advantage, or promise of such, by a person in connection with the affairs of government; conduct by a person in the employ of government, or a person performing a public function, which results in improper prejudice to any other person. Section 6(5) extends the PP’s review to State Owned Enterprises.

Section 9 prohibits any person from insulting the PP. Furthermore, it prohibits any actions, by any person, during an investigation, which would constitute contempt of court had they been before a court of law. A person who contravenes this Section is guilty of an offence in terms of which a fine is payable or a term of 12 months imprisonment is possible.

The Members’ Ethics Act states that the PP must investigate any alleged breach of the code of ethics and that when doing so has all the powers it would have under the PP Act. The reporting becomes crucial when the complaint is against a Cabinet Member (as this includes the President), as the PP must submit the report to the President, even when it involves him or her. A cynic may well ask whether the great minds who drafted the Constitution put hope above experience.

The resultant Executive Ethics Code (which has not been updated since 2000) creates standards by which Members of the Executive must perform their functions. The Code even states that a member (defined as including Cabinet members, a Deputy Minister or a Member of a Provincial Executive Committee and the Executive) must assist the PP in the performance of the PP’s functions.

Attacks on the Public Protector 

In a recent article Ranjeni Munusamy [2] reminds us that the PP has been accused of being a CIA agent sent to destabilise the ANC, thus challenging her patriotism to the ruling party and not the state; of having never been involved in the struggle as it was only the military branch of the ANC, Umkhonto we Sizwe, that was involved in the struggle; and lastly of being petty in her insistence that the President repay the money spent on his family luxury estate.

The current attacks on the PP, however, would seem to suggest that Members have forgotten the law relating to the PP. Comments made by Members of Parliament, which are made out of the context of Parliamentary debate, could at best amount to mindless banter or, at worst, to malicious defamation.

The PP submits its budget, as part of the Justice budget, to Parliament for approval. The PP finds itself facing a “Catch-22” situation. The better it exposes breaches of ethics among members of the executive and other public servants, the more it is subject to abuse and the less its budgetary requests are acceded. The more subdued it is, the more favour it may find with the majority party’s budget committees and the less credibility it will ultimately have with the people it is meant to protect. The very real danger here is that this politics of despair threatens to engulf the Office of the Public Protector.

In an effort to assist with budgetary constraints the Law Society of South Africa undertook to canvas attorneys to work at reduced rates and pro bono and provide the necessary training to the PP [3].

The PP is here to monitor state actions, and to protect South Africans from their elected representatives, when they have failed to hold true to their mandates and even less to the ethics that would prevent them from taking our hard fought freedom and future, down the dismal road so often experienced in post liberation societies.

The Office of the Public Protector is a jewel in the South African constitutional crown. The current incumbent is doing her job. She needs to be supported and encouraged in carrying out her constitutional mandate.

References:

[1] The national legislation includes the Public Protector Act 23 of 1994, the Member’s Ethics Act 82 of 1998, the Prevention and Combating of Corrupt Activities Act 12 of 2004, the Promotion of Access to Information Act 2 of 2000, the Electoral Commission Act 51 of 1996, the Protected Disclosures Act 26 of 2000, the National Archives and Record Service Act 43 of 1996, the National Energy Act 40 of 2004, the Housing Protection Measures Act 95 of 1998, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, the Public Finance Management Act 1 of 1999, the Lotteries Act 57 of 1997, the Special Investigating Units and Special Tribunals Act 74 of 1996 and the National Environmental Management Act 108 of 1998.
[2]http://www.dailymaverick.co.za/article/2014-09-15-zuma-and-the-ancs-great-puzzler-what-to-do-about-thuli-madonsela/#.VBb6pPmSzkU
[3]http://www.derebus.org.za/nxt/gateway.dll?f=templates&fn=default.htm&vid=derebus:10.1048/enu

Chris Pieters – chris@hsf.org.za
Researcher
Helen Suzman Foundation