LSSA supports Public Protector; welcomes debate on accountability

July 1st, 2013

By Barbara Whittle

On 15 May the Law Society of South Africa (LSSA) expressed concern at the tone of questioning of the Office of the Public Protector by members of the Portfolio Committee on Justice and Constitutional Development during public hearings on the Public Protector’s budget and strategic plan for 2013/14 earlier in May.

‘South Africa is a constitutional democracy and not a parliamentary democracy,’ said LSSA co-chairpersons Kathleen Matolo-Dlepu and David Bekker in a press release.

They added: ‘We are of the view that the recent line of questioning by portfolio committee members requesting the Public Protector to explain why she has investigated specific cases is wholly inappropriate. Parliamentary oversight is limited to how the Office of the Public Protector uses public moneys and to protecting and rendering assistance to the Public Protector in dealing with complaints. Parliamentarians, therefore, need to act and speak with circumspection when raising questions as regards the Office of the Public Protector, lest they confuse the public and themselves of the hard-won freedoms that gave rise to our constitutional democracy.’

The LSSA noted that, although parliamentarians stressed in hindsight that they were not questioning the Public Protector’s sole discretion to make decisions as to what she should investigate, the fact that they did so impacted on the independence, dignity and impartiality of her office and on her ability to investigate matters without fear, favour or prejudice.

The LSSA added that the subsequent actions of the Deputy Public Protector, Kevin Malunga, in seemingly ‘apologising’ to parliament for the responses of the Public Protector, could be described as an attempt to ingratiate himself with those who may appoint the next Public Protector. ‘This does not augur well for the future,’ said the co-chairpersons.

The Justice Portfolio Committee issued a statement on 16 May pointing out that the LSSA had not been present at the hearings and should have acquainted itself with what happened before complaining about the tone of questioning by committee members.

‘We are surprised by the assertion that the committee’s questioning of the Public Protector as to why she investigated specific cases was inappropriate,’ said committee chairperson Luwellyn Landers.

The committee believed that asking questions about whether her investigation into complaints about delayed court judgments was consistent with s 6(6) of the Public Protector Act 23 of 1994. As the Public Protector claimed she did not have enough investigators, the committee believed that questioning her as to the appropriateness of investigating matters that should have gone to the Public Service Commission; the Commission for Conciliation, Mediation and Arbitration; or the Labour Court was appropriate, especially in the light of s 6(3) of the Public Protector Act, which allows the Public Protector to refuse to investigate such matters.

Mr Landers added: ‘The law society believes our oversight is limited to “how the Office of the Public Protector uses public moneys and to protecting and rendering assistance to the Public Protector in dealing with complaints”. We would, however, like to point out that this is not the wording of s 181(5) of the Constitution. Section 181(5) provides: “These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the assembly at least once a year.” In addition, s 9(2) of the Public Protector Act reads: “Nothing in this Act shall prohibit the discussion of a matter being investigated or which has been investigated in terms of this Act by the Public Protector”.’

The committee stated that while it did not hold any brief for the Deputy Public Protector, it trusted that the LSSA had applied the rules of natural justice and the audi alterem partem rule and heard from Mr Malunga before reaching its conclusion that his letter to the committee could be described as an attempt to ingratiate himself with those who may appoint the next Public Protector. For the record, said Mr Landers, the committee would not appoint the next Public Protector, as that appointment should only be made after the general elections next year.

On 17 May Public Protector Thuli Madonsela issued a statement welcoming the LSSA’s comments and indicated that she was encouraged by them. Regarding the issue of accountability to parliament, she reaffirmed her commitment to accountability to parliament and drew attention to s 8 of the Public Protector Act, which provides specific guidelines on how parliament may discuss her reports.

Section 8(1) of the Act provides that the Public Protector may, subject to the provisions of subs (3), in the manner he or she deems fit, make known any finding, point of view or recommendation in respect of the matter investigated by him or her.

Section 8(2)(a) provides that ‘the Public Protector shall report in writing on activities of his or her office to the National Assembly at least once every year: Provided that any report shall also be tabled in the National Council of Provinces’.

Section 8(2)(b) provides that reports of the Public Protector may be discussed by parliament under the following circumstances: ‘He or she is requested to do so by the Speaker of the National Assembly; or he or she is requested to do so by the chairperson of the National Council of Provinces.’

Ms Madonsela pointed out that the provisions of s 9 of the Public Protector Act are clearly directed at the contempt of the Public Protector, not accountability by the Public Protector. In this regard, s 9(2) merely creates room for parallel proceedings in parliament on matters under discussion by the Public Protector.

Ms Madonsela thanked all those who were engaging in this matter because, she said,  ‘democracy is a dialogue’. She looked forward to the agreed platform where she, parliament and broader society would engage on the content of parliamentary accountability in a manner that took into account the entire provisions of s 181 of the Constitution.

She added that she intended to approach the Speaker and Deputy Speaker of parliament and the chairperson of the Justice Portfolio Committee to enhance relations with the committee.

In its press release, the LSSA welcomed the suggestion made at the parliamentary hearings that a public debate should be held to clarify the meaning of s 181 of the Constitution, and the relationship between the legislature and Chapter Nine institutions, including the Office of the Public Protector, against the background of South Africa’s constitutional democracy.

Cooperation between the LSSA and the Public Protector

In the meantime, the LSSA met with the Office of the Public Protector in April and both bodies committed to upholding the values of the Constitution and the broad interest of the public and to support one another in the best interests of South Africa and its people. Initiatives would be put in place by the LSSA to support the work of the Public Protector by providing pro bono services by attorneys in serious cases that may emanate from the Office of the Public Protector.

Ms Madonsela indicated in her press statement that she was encouraged by the LSSA’s commitment to partnering to promote a ‘just and corrupt-free state’ and ensuring that victims of administrative wrongs of the state get justice.

Compiled by Barbara Whittle, communications manager, Law Society of South Africa,

This article was first published in De Rebus in 2013 (July) DR 20.

De Rebus