PPSA concerned about interference with its functioning in violation of the Constitution

The Public Protector South Africa (PPSA) is concerned about undue political pressure and demands for evidence presented to the institution as part of the ongoing investigation into allegations of a violation of the Executive Code of Ethics against President Cyril Ramaphosa to be made public.

The Constitution of the republic establishes the PPSA as an independent institution that is subject only to the Constitution and the law, and must be impartial and exercise its powers without fear, favour of prejudice. Moreover, the Constitution prohibits any interference with the functioning of the institution.

The PPSA therefore views the actions of those exerting pressure on the institution to publish the evidence in question, while the investigation is underway, as constituting the interference contemplated in the Constitution and calls upon them to desist from such conduct.

The institution would like to draw the attention of the public to section 7(2) of the Public Protector Act 23 of 1994 which provides that: “… no person shall disclose to any other person the contents of any document in the possession of a member of the office of the Public Protector or the record of any evidence given before the Public Protector [or] a Deputy Public Protector … during an investigation ...”

The intention of the legislature in crafting this provision was clearly to protect the integrity of investigations. Any departure from the provision will only serve to jeopardise the investigation. Interested parties are therefore called upon to be patient as the outcome of the investigation will be communicated to complainants and the public at an appropriate time in line with section 8(1) of the Act.

This section provides that: "The Public Protector may ... in the manner he or she deems fit, make known to any person any finding, point of view or recommendation in respect of a matter investigated by him or her." The PPSA is also aware that other interested parties have been calling for the same evidence to be presented in court proceedings.

The institution wishes to caution those making this call and remind them that sections 6(6) of the Act and 182(3) of Constitution prohibit the PPSA from investigating the performance of judicial functions and court decisions, respectively.

Accordingly, having evidence that is before the PPSA for the purpose of an investigation forming part of court proceedings or being the subject of a court decision might have unintended implications for the investigation in that should the court consider and rule on the matter, the PPSA might no longer enjoy jurisdiction to investigate the issue.