By Nomfundo Manyathi-Jele

The Law Society of South Africa (LSSA) held a colloquium on the Public Protector’s powers on 4 February at the University of Pretoria. The theme of the debate was: ‘Quo vadis Public Protector?’ which means where to from here Public Protector?

Issues discussed included whether –

• there is an attempt to undermine the Public Protector’s office;

• attacks meted out on the office are justified;

• the office has misunderstood its powers and mandate and acts beyond its powers, thus inviting the attacks and criticism; and

• the office has done enough in terms of advocacy.

Also of primary importance was the issue of whether the Public Protector’s findings are binding.

On the panel were Deputy Minister of Justice and Constitutional Development, John Jeffrey; Public Protector, Thuli Madonsela; retired Judge of the Constitutional Court, Justice Zak Yacoob; Deputy Head of the School of Law at the University of the Witwatersrand, professor Mtende Mhango and the executive secretary of the Council for the Advancement of the South African Constitution, Lawson Naidoo. The Co-chairperson of the LSSA, Max Boqwana, was the facilitator.

Mr Boqwana said that the Office of the Public Protector is an important institution in the DNA of South Africa’s democracy. He said that the Public Protector’s office is the one institution that provides South African citizens with what will often be a last defense against bureaucratic oppression and against corruption in public office. ‘If the institution falters or finds itself undermined the nation losses an indispensable constitutional guarantee’, he said.

Mr Boqwana said that Ms Madonsela ‘has been the epitome of bravery in the country.’

Ms Madonsela said that she never thought that there would ever have to be a discussion around whether the Office of the Public Protector is an ordinary ombudsman or if it is a special institution because she has always thought that it was a given. Ms Madonsela argued that a public protector’s findings were binding – unless set aside by a court of law. ‘The courts’ duty, as was the public protector’s, was to the Constitution’, she said.

Ms Madonsela said it has still not been made clear what the powers of her office are but that as far as she knew, the office’s powers are to investigate, report and to correct, but that it seems to have changed. ‘Our understanding over the years is that appropriate remedial action meant different remedies. We have now been told that it means only to mediate,’ she said.

Professor Mhango said that the Public Protector’s powers are not adjudicative or binding. He stressed the point that recommendations are never binding.

Professor Mhango said that the Public Protector was accountable to Parliament: ‘Why would the law seek the Public Protector to go to Parliament if her decisions are enforceable or binding?’ he questioned, adding that there would be no need to go to the legislature then. Professor Mhango said that the remedies of the Public Protector are political and not judicial.

Justice Yacoob started his speech by clarifying that nowhere in the world are the ombudsman’s powers binding.

He said that the Office of the Public Protector is not a court, adding that the recommendations of or actions taken by a Public Protector must be different from a court order. Justice Yacoob added that what the Public Protector is in South Africa would be different to what the Ombudsman is in England, purely because of South Africa’s history and Constitution.

Justice Yacoob said, however, that government has a responsibility to assist and protect all Chapter 9 institutions and to ensure their independence, impartiality, dignity and effectiveness. He said that government is obliged by the Constitution to do so. ‘When a decision has been made by the Public Protector, government must make absolutely certain that they obey the consequences’, he said.

‘Government must not interfere with these institutions. No organ or state can interfere with the functioning of these institutions. These institutions are not accountable to government, however, the government might wish it so, they are only accountable to Parliament,’ Justice Yacoob said.

For me, to ‘take appropriate action’ means that the Public Protector has the right to decide what appropriate action is. ‘To go to court and say the Public Protector is wrong, is like setting aside administrative action’, Justice Yacoob said.

Mr Naidoo said that the findings of the Public Protector are binding but not enforceable. He added that the Office of the Public Protector is not a court of law and its decisions do not hold the same weight as the courts.

Mr Naidoo questioned what the limits of the powers of the Public Protector are and what the effect of its findings and remedial action are.

Mr Naidoo said the country would be on ‘a slippery slope’ if the Executive ignored the Public Protector’s findings.

Deputy Minister Jeffery argued that the Public Protector would wield too much power if her findings were to be binding.

He said that he was surprised that this issue was such a debate because the previous Public Protectors were comfortable with the decision that the office’s powers are not binding. ‘It has always been like this. Ms Madonsela has even said that the government has implemented a large amount of her recommendations. If her decision is binding, should we not do away with our courts then?’ he asked. ‘The Public Protector is essentially an investigator, prosecutor and judge all rolled into one. That is quite unheard of in our law,’ he said.

Deputy Minister Jeffery said findings of the Office of the Public Protector do not need to be binding because an extremely high percentage are recommended by government anyway.

‘The institution works through public pressure. This issue only sprung up after the Nkandla report, it should not be an issue because binding or not, government is responding as it is supposed to,’ Deputy Minister Jeffery said.

‘Surely the Public Protector is not a quasi-judicial body,’ Deputy Minister Jeffery said. ‘[Her] powers are to investigate, and make findings and recommendations, and put them into the public domain. It is in the public domain that the action must be taken.’

Deputy Minister Jeffrey questioned whether the country was getting the maximum effect out of the Public Protector’s office adding that it should be possible to criticise the Office. ‘She keeps bringing up the issue of funding, but perhaps she cannot manage her resources properly. In the 2010/2011 financial year the Office of the Public Protector was given R 114 million, in the current year it was given R 217 million. The South African Human Rights Commission received R 128 million for this current financial year. Are the Public Protector’s resources being used adequately?’ he concluded.

With the exception of Ms Madonsela, the panelists in the debate agreed that the Public Protector’s findings were not legally binding.

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

This article was first published in De Rebus in 2015 (March) DR 6.