Address by Public Protector Adv Thuli
Madonsela during a Press National Club Media briefing held
at the Court Classique Hotel in Arcadia, Pretoria on
Wednesday, November 24, 2010
24 November 2010
Chairperson of the National Press Club, Ms Doreen Ghogh;
Other members of the Executive Committee present;
Members of the media;
Ladies and gentlemen;
It is always an honour for me to address the National Press
Club. The media is a very important stakeholder with a
critical role in ensuring that my office effectively plays
its role of giving the people of South Africa a voice,
remedying government’s administrative injustices or failures
and reconciling the people with the state.
Today marks a very important moment in the history of the
Public Protector as a constitutional institution. For the
first time since this office was established in 1995, we
have created rules that will strengthen the Public
Protector’s power to exact accountability when service or
conduct fails in the administration of state affairs.
Aimed at expediting the resolution of complaints and
ensuring compliance with the Public Protector’s remedial
action and recommendations by organs of state found guilty
of failing the public, these rules will standardise
timelines, subpoenas, search and seizures and contempt of
the Public Protector orders, among other things.
Noting the critical role that my office and other
constitutional institutions play in strengthening and
supporting our constitutional democracy through exacting
accountability, former President of the Republic of South
Africa and renowned humanitarian, Nelson Mandela once said
that:
“Even the most benevolent of governments are made up of
people with all the propensities for human failings. The
rule of law as we understand it consists in the set of
conventions and arrangements that ensure that it is not left
to the whims of individual rulers to decide on what is good
for the populace. The administrative conduct of government
and authorities are subject to the scrutiny of independent
organs. This is an essential element of good governance that
we have sought to have built into our new constitutional
order.
An essential part of that constitutional architecture is
those state institutions supporting constitutional
democracy. Amongst those are the Public Protector, the Human
Rights Commission, the Auditor General, the Independent
Electoral Commission, the Commission on Gender Equality, the
Constitutional Court and others.”
The President of South Africa, His Excellency Mr Jacob Zuma,
has acted in a manner that suggests that he shares former
President Nelson Mandela’s views on the importance of the
Public Protector as one of the checks and balances against
maladministration and related state excesses in dealing with
people and public resources. In the Presidency’s dealings
with my office, the President has remained true to the
remarks he made upon my appointment just over a year ago
when he said:
The Public Protector “takes on an important responsibility,
having to protect South Africans against any abuse of power
by state organs or officials.” He further noted that the
Public Protector needs to ensure that this office “continues
to be accessible to ordinary citizens and undertakes its
work without fear or favour.”
Such conduct is encouraging to me and my team as it suggests
an appreciation of the fact that the drafters of the
Constitution deliberately gave the people of South Africa an
additional avenue to the courts and tribunals for accessing
justice and exacting accountability on public officials and
office bearers. The conduct further suggests an appreciation
that complaining against or reporting improper conduct by
organs of state is not criticism but a form of dialogue that
seeks not only to remedy administrative injustices by the
state but also seeks to keep government in touch with the
needs, thoughts and wishes of its people. This cannot we bad
for democracy and the pursuit of the country’s developmental
objectives, including Millennium Development Goals.
Unfortunately, there are a few organs of state and actors
who disregard the Public Protector’s processes, findings and
views on remedial action. One or two of these have even
questioned my powers at the expense of distressed citizens
who chose this cost free avenue instead of courts and
tribunals in the belief that the Constitution and the law
are not bluffing them when they state that the Public
Protector must provide remedial action and resolve disputes
involving the conduct of organs of state.
Recently I received a letter from one national department,
incorporating advice from a state lawyer, which advised that
the organ of state in question had no legal obligation to
implement my findings. After correctly stating section 182
of the Constitution which gives me the power to take
remedial action and the Public Protector Act which gives me
the power to resolve disputes involving alleged
maladministration, abuse of power and prejudicial conduct by
organs of state, the legal opinion cited some archaic
academic article that said the Ombudsman institution is only
entitled to make recommendations.
The opinion given to the organ of state in question not only
failed to understand the constitutional and legal
foundations of the Public Protector but also disregarded
abundant contemporary jurisprudence on the institution of
the Ombudsman. Contemporary jurisprudence states, among
others, that each institution has powers as vested by
statute and that organs of state may only refuse to
implement the findings of an Ombudsman if they have cogent
reasons for disputing such findings.
Many of the findings that sought to alleviate the plight of
distressed citizens who had suffered injustice or prejudice
due to acts and omissions of government were being rejected.
Incidentally, in total disregard of the principle of
maladministration or bad administration underpinning the
Public Protector’s mandate and principles of administrative
justice, which constitute one of the pillars of our
constitutional democracy, the misleading advice informed the
organ of state that since its action was not unlawful, there
was no impropriety or wrong.
I admit that organs of state need not swallow all I say lock
stock and barrel. The issue is that there must be cogent
reasons for contesting my findings and in the case in point,
my office cannot find any. In any event when it comes to the
duty on organs of state or state actors to respond promptly
to communication from my office and to attend meetings, this
is not negotiable.
It is in such cases that my office is not going to hesitate
to use its full powers to exact compliance with the
Constitution and the law. This will include subpoenas and an
order of contempt of the Public Protector where appropriate.
This brings me back to the rules we are launching today. The
rules seek to strengthen our measures on ensuring
cooperation with the investigations by my office and the
implementation of my findings.
The development of the rules which will be published in the
Government Gazette for public comments early next week, is
in line with section 7 (11) of the Public Protector Act of
1994. The Act states that the Public Protector may make
rules in respect of matters that have a bearing on
investigations provided that such rules are published in the
Gazette and tabled in the National Assembly.
Heavily influenced by our resolve to, among other things,
provide prompt remedial action on all complaints lodged, we
find it unacceptable that some organs of state still give us
a run-around when we seek answers on behalf of distressed or
aggrieved members of the public.
The people who come to my office for help often have no
financial means to take the mighty state to court and come
to me as a last resort, believing that my office can provide
them with justice free of charge and quicker than tribunals
and courts. If my office, with the powers vested on it by
the Constitution and national legislation, struggles to help
the ordinary old woman in the street with a legitimate
complaint against the state due to a non-cooperative organ
of state, then invoking the full powers given to me by the
law is the only way to go. This includes issuing a subpoena,
search and seizure and a contempt of the Public Protector
order.
Chairperson;
I must say, however, that I am encouraged by those organs of
state that recognize and respect the role of my office and
continue to implement my findings on maladministration and
remedial action. This exemplary conduct ought to rub-off on
the few that are still problematic for the benefit of our
constitutional democracy and the government’s own integrity.
The rules, as I have indicated before, also seek to ensure
more transparency regarding the operations of my office.
More importantly this will be a key mechanism for ensuring
that timelines are kept and accordingly case turnaround
times are drastically reduced leading to prompt remedial
action as promised in our strategic objectives. Copies of
the rules are included in your packs that will be
distributed shortly.
Ladies and gentlemen;
Today, I am also releasing some of the reports that I have
finalised and issued since our last media briefing in June
2010. In the main, these relate to the cases we refer to as
“bread and butter” matters and other issues that involve
ordinary people. There are also cases that deal with ethical
conduct and integrity in the conduct of state affairs. Some
of the cases combine both conduct service and conduct
failure.
There are 16 reports. They include my findings in an
investigation where the Durban Commercial Crimes Unit failed
to act in accordance with the law resulting in the
complainant suffering financial prejudice. In this case my
findings include comparable financial compensation. Another
case involves an internship applicant that was robbed of an
internship while the salary under her name was fraudulently
paid to someone else. Here my findings include compensation
and an internal investigation with a view to disciplinary
action against those involved in conduct failure. There’s
also a report on abuse of power by a state institution that
is meant to be a custodian of justice and fairness.
This is just a sample of the interventions of my office that
have made a difference through redressing administrative
injustices or failures of the state while generally
promoting good governance. Many of the matters are settled
through a predominantly friendly or informal early
resolution process.
You will find copies of all the reports in disks as part of
your packs also. A few printed copies are also available for
your perusal during this session.
Programme Director;
I would like to take this opportunity to express my deepest
gratitude to the media and members of the public that have
continuously supported the work of my office in the last 13
months since I took office. We continue to rely on you to
identify matters that we need to consider for investigation,
leads on evidence, particularly in matters involving conduct
failure, including corruption. Some of the investigations my
office has undertaken in the past year were a result of good
investigative work by the media to expose the rot in state
affairs. Some also dealt with systemic service failure
affecting communities that had no voice of their own.
The media also helps keep my office on its toes regarding
turnaround times and quality of work. We constantly receive
calls and e-mails seeking progress regarding these
investigations. This shows how passionate the media and
society are about instilling senses of good governance,
accountability and integrity in the public sector. These
principles and the principle of responsive governance are
central to the existence and functioning of my office.
I trust that we will continue to work together to ensure
that those wronged by the state get tangible justice and
that the state is continuously alive to the needs of its
people while being to entrench good governance and the rule
of law.
I am happy to take questions on the rules, the reports
issued today and some of the investigations currently
underway for purposes of bringing you up to speed with
progress on all matters of interest to you regarding my
office.
But before questions, and through you Chairperson, I would
like to give the Deputy Public Protector, Adv Mamiki Shai,
an opportunity to briefly take us through the key details
regarding the rules. I thank her and the team that worked
with her in the drafting of the rules.
I also thank the rest of my team for the hard work and
responsiveness that enables this office to deliver on its
constitutional mandate and promises. The work is done under
enormous resource constrains and in this regard I hope
government will eventually give the office a reasonable
amount of resources to realistically pursue its
constitutional and statutory mandate.
Thank you
Public Protector South Africa
Adv TN Madonsela
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