History and Background to the Office of the Public Protector

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 effectiveness.

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 Protector.

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.

Jurisdiction 

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.

Reporting

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 if:

  • 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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