Public Protector concerned by inaccurate interpretations of her office’s constitutional mandate
Public Protector Adv. Thuli Madonsela said on Thursday that the increasing legal resistance and litigation in respect of her investigation reports were some of the issues that led to the refocusing of her office’s annual stakeholder dialogue for this year on her constitutional powers.
Addressing the Western Cape leg of the dialogue in Cape Town, Public Protector Madonsela said further issues that necessitated the scrutiny of constitutional provisions in relation to her office were recent developments, including accusations that she believed she was above the Constitution and the accompanying personal insults.
“[These] and others suggested to us that we need to revisit the conversation on what exactly does the Constitution say about the place, powers and responsibility of my office in our democracy,” she said. “As a corollary, the conversation must include what is expected from government when the people complain and when the Public Protector acts.”
Debunking growing myths relating to her office’s constitutional mandate, Public Protector Madonsela told the meeting that there was a trend of interpreting the Public Protector’s mandate without reference to the Constitution or the law and making generalized and unreferenced assertions that the Public Protector’s powers as an “Ombudsman” are limited to “recommending”. She explained that nowhere in the Constitution was the word “recommendation” used in connection with the Public Protector and that the Public Protector Act enjoins her in section 8(1) to communicate her findings.
Public Protector Madonsela reminded stakeholders that her office, along with other chapter nine institutions, was established under Section 181 of the Constitution. She added that Section 182 stated that:
“182 (1) The Public Protector has the power, as regulated by national legislation, has the power 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;
- report on that conduct; and
- take appropriate remedial action.
182 (2) The Public Protector has additional powers and functions as proscribed by national legislation.
182 (3) The Public Protector may not investigate court decisions.
182 (4) The Public Protector must be accessible to all persons and communities.
182 (5) Any report of the Public Protector must be open to the public unless exceptional circumstances, to be determined in terms of national legislation, require that a report be kept confidential.
Public Protector Madonsela decried the advice of people she called “pseudo-experts”, which she said was also without references to the Constitution and the law. “In medicine, you would not bring a gynecologist to come and contest the views of an ophthalmologist on issues involving eye care,” she said.
She reminded stakeholders that in terms of the supremacy of the Constitution, no law or instrument could reduce the powers granted by the Constitution, adding that the most contested constitutional power of hers was that of being able to “take appropriate remedial action”.
Public Protector Madonsela also told the meeting that the dialogue, which takes place under the theme “Joining Hands in a Partnership against Maladministration and Corruption”, sought to solidify synergies with organs of state, including fellow oversight5 bodies, to ensure a seamless state that provides public services efficiently and responsively.
“I also trust that we are here because of our common belief that the achievement of the vision and objectives in the National Development Plan (NDP), the President’s inaugural State of the Nation Address, the State of the Province Address and local government goals require us to join hands in pursuit of good governance,” she said.
“… and that our call for a partnership against maladministration and corruption is for our mutual benefit and ultimately in the interest of our people”
She invited stakeholders to join hands with her office in the fight against maladministration and corruption, explaining that joining hands would do wonders in fostering public trust and thus buttressing constitutional democracy.
The dialogue was attended by the Speaker of the Provincial Legislature, members of the provincial executive and the Executive Mayor of the City of Cape Town, who all affirmed the Public Protector Team understands of the institution’s constitutional mandate.
The event comes a month after the Premier of Gauteng David Makhura, the Speaker of the Gauteng Provincial Legislature Ntombi Mekgwe and the Executive Mayor of the City of Joburg Parks Tau, who also pledged their support for the Public Protector, committing to cooperate with its processes.
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