As such, it clarified the scope and reach of the Public Protector’s powers, reiterated the constitutional prerequisites for accountable government in South Africa, and reflected on the state of affairs at the SABC as state-owned enterprise and public broadcaster.
Section 1 of the Constitution requires government that is accountable, responsive and open. The Court, however, remarked that these values were not always adhered to by the government and that “it would be naïve to assume that organs of State and public officials, found by the Public Protector to have been guilty of corruption and malfeasance in public office, will meekly accept her findings and implement her remedial measures. That is not how guilty bureaucrats in society generally respond”.
In terms of section 182 of the Constitution, the Public Protector is 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” and to “report on that conduct” and “take appropriate remedial action” as regulated by legislation. In terms of the Public Protector Act, the Public Protector is competent “to endeavour, in his or her sole discretion, to resolve any dispute or rectify any act or omission by… mediation, conciliation or negotiation; advising, when necessary, any complainant regarding appropriate remedies; or any other means that may be expedient in the circumstances”.
However, the Court held that the Public Protector cannot realise this constitutional mandate if other organs of State question her findings and ignore her recommendations. For this reason, the Court held, section 182(1)(c) of the Constitution must be interpreted to mean what it says: “The Public Protector may take remedial action herself. She may determine the remedy and direct its implementation… the Constitution intends for the Public Protector to have the power to provide an effective remedy for State misconduct, which includes the power to determine the remedy and direct its implementation”.
Crucially, the Court asserted that the Constitution demands that remedial action taken by the Public Protector should not be ignored. Rather, if an individual or institution is aggrieved by a finding, decision or action taken by the Public Protector, they may in appropriate circumstances challenge the latter by way of a judicial review application: “Absent a review application, however, such person is not entitled to simply ignore the findings, decision or remedial action taken by the Public Protector”. Importantly, the Court also held that an individual or State institution affected by a finding, decision or remedial action taken by the Public Protector “is not entitled to embark on a parallel investigation process to that of the Public Protector, and adopt the position that the outcome of that parallel process trumps the findings, decision or remedial action taken by the Public Protector”.
In relation to the SABC, the Court deemed it necessary to reflect on the sad state of affairs regarding that State institution and noted that “The public interest should … be its overarching theme and objective. Sadly, that has not always been the case”.
Although this case involves the SABC, it is reflective of the state of affairs in the national Executive and other organs of State where it appears as if personal interests – instead of public interest – have become the overarching theme and objective. In this regard, the Court’s contention in relation to the SABC that “for as long as it remains dysfunctional, it will be unable to fulfil its statutory mandate”, also applies to the rest of government.
The SCA’s judgment is a victory for our constitutional democracy in which ordinary State powers are limited by the Constitution and public representatives are required to act in terms of the Constitution and the Rule of Law. It is a victory for accountable, responsive and open government and a stern warning to those in positions of power that the abuse of those powers or positions will not be tolerated by the Courts or the people of South Africa. Of course, most interestingly, the implication of the judgment in relation to the manner in which the national Executive and Parliament dealt with the Nkandla-matter, speaks for itself. Nevertheless, this judgment is a message loud and clear to those in positions of power: South Africans have had enough of corruption, maladministration and bad governance – and the Courts agree.
By Adv Johan Kruger, Director: Centre for Constitutional Rights