In terms of section 1 of the Constitution, our constitutional democracy requires a government that is accountable, responsive and open. Hence, the importance of the Public Protector as an independent ombudsman mandated to investigate “any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice”. Apart from investigating maladministration and abuse of power, in terms of section 182, the Public Protector also has the power, as regulated by legislation, to “report on that conduct” as she sees fit; and in her sole discretion, to “take appropriate remedial action”.
In order for the Public Protector to strengthen and support constitutional democracy in South Africa, the Constitution, determines (like the other institutions established in terms of Chapter 9) that this institution is independent and subject only to the Constitution and the law. The Public Protector is not part of the Executive and does not report to Cabinet or any government department, but is accountable to the National Assembly and must report on her activities and the performance of their functions to the Assembly at least once a year. The Public Protector must be impartial and must exercise her powers and perform her functions without fear, favour or prejudice. Moreover, the Constitution requires all organs of state to assist and protect the Public Protector so as to ensure the independence, impartiality, dignity and effectiveness of this institution. As such, no organs of state, or any other person may interfere with the functioning of the Public Protector.
Two issues arose from the most recent bouts of criticism against the Public Protector: the Public Protector’s relationship with Parliament; and the manner in which the Executive and other individuals engage with the Public Protector.
The Public Protector reports to Parliament for two different reasons. First, in terms of section 181(5) of the Constitution read with section 8(2)(a) of the Act, the Public Protector must report at least once a year to Parliament “on their activities and the performance of their functions”. This is a general reporting requirement in line with Parliament’s oversight function in relation to the Public Protector – the same as organs of state would present their annual reports to Parliament. Secondly, in terms of section 182(1) of the Constitution read with section 8(2)(b) of the Act, the Public Protector shall, at any time, submit a report to the National Assembly on the findings of a particular investigation if she deems it necessary or in the public interest; if it requires the urgent attention of, or an intervention by, the National Assembly; or if she is requested to do so by the Speaker of the National Assembly or the Chairperson of the National Council of Provinces.
Unlike the annual reporting responsibility, the Public Protector has a choice whether to report her findings and recommendations of any investigation to Parliament (unless, of course, she is requested by the Speaker or Chairperson to table such a report). She may, for instance, choose, in terms of section 6(4)(c) of the Act, to bring the findings and recommendations in certain circumstances to the attention of the National Prosecuting Authority (the NPA), or to any other public body or authority affected by the conduct. If she, however, chooses to report certain findings and recommendations on executive conduct to the National Assembly based on any of the aforementioned grounds, the National Assembly has a duty in terms of section 42(3) of the Constitution to scrutinise and oversee such executive conduct. Should the National Assembly, based on the facts before them, fail to act rationally or to act at all, their conduct will be reviewable by a court and will most likely fail to meet constitutional muster. Nonetheless, the National Assembly is not the final arbiter of such a report – only a court can review such a report in terms of constitutionality or due process. Thus, even though Parliament may choose not to act upon the findings and recommendations, the Public Protector may still report it to the NPA or affected organisation (emphasising yet again the importance of the independence of the NPA itself). It is important to note that no sub judice-rule exists for Parliament and although the Public Protector may have submitted a report to Parliament, nothing prohibits her, in her sole discretion, from also choosing other remedial actions including “any other means that may be expedient in the circumstances”, or from communicating “to any person any finding, point of view or recommendation in respect of a matter” investigated by her. Given the National Assembly’s track record for appropriately considering and acting upon reports of Chapter 9 institutions in general, the Public Protector can hardly be blamed for choosing parallel processes, including public communication, aimed at seeking some form of resolution to her findings and recommendations.
Turning to the Executive and other organisations and individuals’ engagement with the Public Protector, one may be excused for thinking that there are people who may have not read the Constitution. The latter requires all organs of state to assist and protect the Public Protector, but also not to interfere with the functioning of this office. Apart from organs of state, no other person, including political party representatives, may interfere with the functioning of the Public Protector. This is to ensure not only the independence and impartiality of the Public Protector but also her dignity and effectiveness. It is expected of the Cabinet and Deputy Ministers, but also government departments, other organs of state and all government officials not to be a hindrance to the Public Protector. In fact, they are supposed to be actively supporting and aiding her in her tasks. Moreover, they are obliged to defend and shield the Public Protector from insult, interference and intimidation – anything which affect her dignity, credibility and hence the effectiveness of her office. Unfortunately, this has not been the case as has been regularly and well reported in the media.
Political parties and other individuals may perhaps not have a legal duty to assist and protect the Public Protector, but they are, just as organs of state, prohibited from interfering with the functioning of her work. Statements and remarks bringing into question the dignity or integrity of the Public Protector will certainly undermine the functioning of the Public Protector and that of her office – and could most certainly constitute interfering. Section 9 of the Act recognises the danger of such statements. Appropriately, it determines that “no person shall insult the Public Protector or the Deputy Public Protector” (thus, treat her with disrespect or scornful abuse), or “…do anything which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court”. Accordingly, section 11 of the Act provides that any person who contravenes this provision or who interferes with the functioning of the office of the Public Protector commits a criminal offence liable to a fine not exceeding R40 000 or to imprisonment for a period not exceeding 12 months, or to both. As with the Constitution, certain people may also not have read the Act.
The Public Protector is the public’s investigator – an additional safety net against the abuse of power by those who wield power on behalf of the people. The Public Protector is more easy to approach than the courts, although her conduct and findings are subject to judicial review by the courts. She is accountable to Parliament and shielded from interference by the Executive, who are, in principle, the target of her investigations. The Public Protector, to a large extent, relies on the National Assembly to act, and act rationally upon her findings and recommendations. Failing this, both a court of law and the court of public opinion should judge Parliament for its failure to act in the best interests of those whom they are representing. The Public Protector must be respected and protected – both by Parliament and by the Executive. Alas, undermining the integrity and functioning of this institution is likely to do the same to our constitutional democracy.
Adv Johan Kruger, Director: Centre for Constitutional Rights
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