History and Background to the Office of the Public
Appointment mechanism and powers
The Public Protector is appointed by the President, on the
recommendation of the National Assembly, in terms of Chapter Nine
of the Constitution, 1996. The Public Protector is required to be
a South African citizen who is suitably qualified and experienced
and has exhibited a reputation for honesty and integrity. The
Constitution also prescribes the powers and duties of the Public
Protector: Further powers, duties and the execution thereof are
regulated by the Public Protector Act.
Section 181 of the Constitution ensures that the Public
Protector shall be subject only to the Constitution and the law.
He/she must be impartial and must exercise his/her powers and
perform his/her functions without ‘fear; favour or prejudice’. No
person or organ of state may interfere with the functioning of the
Public Protector’s office.
The Public Protector 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.
Following such an
investigation the Public Protector has to report on the conduct
concerned and he/she can take appropriate remedial action.
Additional powers and functions are provided for by the Public
Protector Act, 1994. The Public Protector may not investigate
court decisions. He/she must be accessible to all persons and
communities. Other organs of state must assist and protect the
institution to ensure its independence, impartiality, dignity and
The Public Protector is neither an advocate for the complainant
nor for the public authority concerned. He/she ascertains the
facts of the case and reaches an impartial and independent
conclusion on the merits of the complaint.
A brief history of the office
Most democracies have a national institution similar to that of
the Public Protector – although called by different names, amongst
others, Ombudsman, Mediator; Commissioner etc. – which is
empowered by legislation to assist in establishing and maintaining
efficient and proper public administration.
The idea of the office of Ombudsman originated in Sweden, but
did not spread to other countries until the 20th century, when it
was adopted in other Scandinavian countries. In the early 1960’s,
various Commonwealth and other, mainly European countries,
established such an office. By mid 1983, there were about 21
countries with Ombudsman offices at national level and about 6
other countries with Ombudsman offices at provincial, state or
regional levels. In particular, the transition of many countries
to democracy and democratic structures of governance over the past
two decades, has led to the establishment of many more Ombudsman
offices during this recent period. Accordingly, by 1998, the
number of Ombudsman offices had more than quadrupled to encompass
offices both in states with well established democratic systems
and in countries which have younger democracies, such as countries
in Latin America, Central and Eastern Europe, as well as in parts
of Africa and the Asia pacific.
With the founding of a proper and modern democracy in South
Africa, it was decided that such an institution should also form
part of the establishment of institutions that will protect
fundamental human rights and that will prevent the state from
treating the public in an unfair and high handed manner.
During the multi-party negotiations that preceded the 1994
elections, it was agreed that South Africa should have a Public
The Public Protector was established by means of the provisions
of the interim Constitutions of 1993 and confirmed as an
institution that strengthens constitutional democracy by the final
Constitution, 1996. The office of the Public Protector came into
being on 1 October 1995.
The Public Protector has jurisdiction over all organs of state,
any institution in which the state is the majority or controlling
shareholder and any public entity as defined in section 1 of the
Public Finance Management Act, 1999.
Particular powers and duties
During an investigation, the Public Protector may, if he/she
considers it appropriate or necessary:
- Direct any person to appear before him/her to give evidence
or to produce any document in his/her possession or under
his/her control which, in the opinion of the Public Protector,
has a bearing on the matter being investigated, and may examine
such person for that purpose;
- Request any person at any level of government, or performing
a public function, or otherwise subject to his/her jurisdiction,
to assist him/her in the performance of his/her duties with
regard to a specific investigation; and
- Make recommendations and take appropriate remedial action.
The Public Protector is accountable to the National Assembly
and must report on his/her activities and the performance of
his/her functions to the Assembly at least once a year. The Public
Protector must, however, at any time submit a report to the
National Assembly on the findings of a particular investigation
- He/she deems it necessary;
- He/she deems it in the public interest;
- It requires the urgent attention of, or an intervention by,
the National Assembly, or
- He/she is requested to do so by the Chairperson of the
national Council of Provinces.
- Any report issued by the Public Protector must be open to
the public unless exceptional circumstances require that a
report be kept confidential.
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