Compiled by Barbara Whittle

In February this year the Law Society of South Africa (LSSA) held a colloquium on the powers and functions of the Office of the Public Protector in cooperation with the Centre for Human Rights at the University of Pretoria (see News ‘Public Protector’s findings not legally binding’ (2015 March DR 6)). Since then, the LSSA Council has discussed the positions at the colloquium and in July this year it finalised its position paper on the powers and functions of the Public Protector’s office, pending the issue being decided by the Supreme Court of Appeal and the Constitutional Court.

The position paper is available on the LSSA website at www.LSSA.org.za.

Overall outcome of the colloquium

Public Protector Advocate, Thuli Madonsela, at the LSSA Colloquium on the Powers and Functions of the Office of the Public Protector earlier this year.

The LSSA highlights the outcome of the colloquium discussions as follows:

• Findings of the Office of the Public Protector are issues of fact (that is, whether or not there was maladministration).
• Findings of the Office of the Public Protector are not binding. The only exception to this rule is when a government institution rejects the findings on the basis of irrationality, or for an irrational reason. However, it is unclear at this stage how it will be determined if it was rejected on an irrational basis or not, and to whom it will fall to make this determination.
• Recommendations by the Public Protector are steps suggested to remedy the maladministration and can never be binding.
• Those in power should treat findings of the Office of the Public Protector with the respect and care they deserve and avoid using technical defences to flout these findings.
• The Office of the Public Protector must ensure that good governance will be valued above all else. This instils trust among the general public that corruption and maladministration in state and public entities will be exposed and dealt with appropriately. The Office of the Public Protector is an institution that should broaden access to justice for the poor and marginalised. Therefore, recognising that the Office of the Public Protector cannot be granted all-encompassing powers, it must still be able to execute its duties in such a way as to ensure maximum effectiveness, and promote a culture of respect to its findings.
• Only the Office of the Public Protector can determine what ‘appropriate remedial action’ is in each case.
• The onus falls on the Office of the Public Protector to have the imagination and creativity to determine the action that will achieve the desired result, regardless of whether there is authority or not.
• It is, therefore, important that the Office of the Public Protector does not get caught up in the debate regarding the binding nature of its findings, but to rather flesh out the appropriate remedial action and place its findings in the public domain. However, the ultimate decision as to whether government has abided by the Constitution will still rest with the courts.

The LSSA acknowledges that it is the role of the Office of the Public Protector, as a Chapter 9 institution, to strengthen constitutional democracy and promote a culture of accountability among state organs. It also recognises that the Office of the Public Protector must ensure efficient, cost-effective, transparent and accountable governance, and is tasked with providing an easy, accessible, and cost-free mechanism for the public to report maladministration and abuse of power.

However, as a key stakeholder in the legal arena the LSSA also respects the importance of the judiciary, its independence in handing down judgment in cases of public interest, and its power to effectively set precedents on issues of law.

In the light of the above, the LSSA stated its official position to be as follows:

• Respect for the Office of the Public Protector as a Chapter 9 institution must be created to support constitutional democracy.
• The LSSA supports the assertion that there is a definitive distinction between findings and recommendations by the Public Protector’s Office.
• Findings of the Office of the Public Protector are not binding unless an organ of state rejects them on an irrational basis.
• Pending clarity on the interpretation of ‘irrational basis’, the LSSA will embrace the precedent set by the court that at first instance the findings are not binding. Whether an organ of state acted irrationally is still a matter to be decided by the courts on a case-by-case basis.
• The LSSA supports the fact that the Office of the Public Protector’s main weapon, at the moment, is its power to place findings and recommendations in the public domain and appeal to the moral conscience of state organs.

The LSSA resolved to:

• Do its part to urge state organs to respect their obligations in terms of the Constitution when dealing with findings and recommendations from the Office of the Public Protector.
• Engage in discussions to explore means through which national respect for the Office of the Public Protector can be created and promoted.
• Engage in a consultation with the Office of the Public Protector to explore possibilities where the legal profession can be of assistance in improving the efficiency of the Office.
• Assist in creating and promoting a proper forum, consisting of all key stakeholders, for constructive interaction regarding findings and the appropriate implementation of recommendations.

Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2015 (Oct) DR 23.