Adv. Madonsela decries 'gate to nowhere' Public Protector

Public Protector Adv Thuli Madonsela on Wednesday criticized arguments that her investigations can only culminate in mere recommendations that were not binding.

Such arguments, said Public Protector Madonsela, sought to turn an important constitutional avenue for access to justice into what she termed "a gate to nowhere".

Speaking at a South African Women Lawyers Association (SAWLA) access to justice outreach event in Kwa Mzizi near Bizana, Public Protector Madonsela told a packed hall that the suggestion that state actors were not obliged to make amends after she had adjudicated the public's complaints was extremely flawed.

"Those who advocate this view say it is so because the Public Protector is not a judge or court of law. This logic is beyond flawed because we all know that you need not be a judge to have power to make binding decisions," she said.

"The Independent Electoral Commission, which is a fellow Chapter Nine institution, and others such as the Commission for Conciliation, Mediation and Arbitration and the Competition Commission make binding decisions and they are not courts."

Public Protector Madonsela decried the apparent reduction of her office's powers to just making mere recommendations, reasoning that nowhere in constitutional provisions applicable to her office was the word "recommendation" used.

She asked what message were those that were for the argument sending to ordinary people who had genuine complaints about public healthcare services, RDP housing services, social security, and water provision, among other things.

"Why are we saying to Gogo Dlamini 'here is an avenue for you to exact accountability and vindicate your rights' and then turn around to say 'should this avenue say your claims are substantiated we will turn a blind eye'?" Public Protector Madonsela asked, adding that such views had the potential to not only undermine access to justice but constitutional democracy too.

She said the Public Protector was one of the greatest innovations of South Africa's Constitution, transforming both access to justice and public accountability frameworks beyond the classical mechanisms such as courts and tribunals.

Listing a number of cases, where her offices successfully vindicated the rights of ordinary people, Public Protector Madonsela said regular folk would be at a disadvantage if they were to consider taking government to court because government has better access to resources, including money, people and time.

She said the establishment of her office was a ground breaking invention in so far as leveling the playing field between ordinary citizens and those who have the mighty resources and power of the state behind them.

"Naturally there is a massive power imbalance between an ordinary Gogo Dlamini and state actors, whoever they may be," Public Protector Madonsela said. "[The Public Protector therefore] is one of the levers of constitutional democracy that enable you as the owners of public power and resources to exact accountability from those entrusted with public power when the traditional public accountability mechanisms fail or encounter limitations."

Turning to the National Heritage Day, Public Protector Madonsela said South Africans' national heritage transcended artefacts, historical knowledge, traditional clothes, music, language, the environment, and other beautiful legacies from our past.

She said the country's greatest heritage was its Constitution, adding the document represented a roadmap to the South Africa its people yearned for and the glue that bound them as a nation.

"I must add that," Public Protector Madonsela said, "for all our sakes, it's important that we all understand, promote and defend our Constitution and the freedoms we have as a legacy of the struggle for justice and democracy in our land."

She added that many of the rights promised by the Constitution were often violated. "When that happens there must be avenues for vindicating those rights. You will agree with me that without meaningful avenues for vindicating rights when violated, such rights are nothing but empty promises."

She thanked SAWLA and the Department of Justice and Correctional Services for the Access to Justice Week Initiative thus keeping the matter of access to justice in the national radar while bringing relief to many who needed information about their rights, avenues for enforcing their rights and legal assistance to effectively pursue such avenues.

For more information, contact:
Mr Oupa Segalwe
Manager: Outreach, Education and Communications
Public Protector South Africa
(012) 366 7035
072 264 3273

Published Date: 
Wednesday, September 24, 2014