Public Protector calls on lawyers to enrich debate on 'taking appropriate remedial action' and to deepen democracy

Public Protector Adv. Thuli Madonsela has reiterated her appeal to the South African legal community - as part of the country's brain trust - to use its knowledge of the law to enrich the debate on the powers of her office.

Speaking at the annual general meeting of the Cape Town Attorneys' Association last night, the Public Protector said this should been seen in the context of ensuring that ordinary citizens believed that the country's governance system works.

She added that the legitimacy of state institutions was essential for a stable constitutional democracy and if people started believing that such institutions have no power to help them exact accountability in the exercise of state power and control over public resources, the risk of social unrest would be heightened.

The call comes in the wake of a growing resistance on the part of organs of state to implement remedies coming out of her investigation reports and increased resistance to submit to her office’s accountability processes during investigations.

The Public Protector said her office is facing increasing resistance and disregard for its authority since last year's judgment of the Western Cape High Court in a matter between the SABC and the DA, which her office is appealing.

In the judgement, Judge Ashton Schippers held, among other things, that the "recommendations of the Public Protector (termed findings and remedial action in Public Protector reports) were more than mere recommendations but were not binding on anyone. He also stated that the Public Protector is not a court of law.

The Public Protector alluded to the fact that the Electoral Commission which, like the Public Protector gets its powers from Chapter 9 of the Constitution makes binding decisions that may only be set aside on review by a court of law.

"Can the Public Protector give Gogo Dlamini a voice if the judgment stands," she asked, adding that the verdict gave organs of state fingered for wrongdoing the power to review the very findings made against them.

"Why are we telling Gogo Dlamini that it is useless to go to the Public Protector to hold the government to account as the buck stops with government? Aren't we encouraging her to go to the streets and burn public facilities?"

While stressing her respect for Judge Schippers and the judiciary at large, the Public Protector suggested that there were weaknesses in the verdict, which weaknesses needed to be looked at closely. These included the fact that the jurisprudence on the basis of which the judgement was made was not relevant to the South African context.

She explained that the United Kingdom (UK) ombudsman on whose powers Judge Schippers largely based his decision, specifically using the case of Bradley from that country, is an agent of that country's Parliament; a country, where Parliament is supreme.

In addition, the UK Ombudsman could only investigate administrative justice matters and not ethical violations and corruption or the conduct of politicians.

The Public Protector noted that, in stark contrast, her office was a creature of the Constitution, in a country where the Constitution, and not Parliament, is supreme.

She further mentioned that her office’s powers transcend the investigation of maladministration and incorporate the investigation of corruption, ethical violations, review of decisions of the National Home Builders Registration Council and together with the Auditor General, act as safe harbours for whistle-blowers under the Protected Disclosures Act.

Illustrating the point that the wording in the constitutional provisions enjoining her office to "take appropriate remedial action" was deliberate, the Public Protector retraced the office's steps back to 1979.

She told the meeting that the office was first established 36 years ago when the apartheid government established the Office of the Advocate-General, which was transformed into the Office of the Ombudsman in 1991. The Advocate-General could only investigate "misappropriation of public funds" while its successor, the Ombudsman, had an added mandate of maladministration.

Three years later, following the current governing party's policy proposals and the multi-party talks, the interim Constitution established the Public Protector, with similar powers to its forbearer, the Ombudsman.

She noted that the most notable change in the powers of the Public Protector would later be seen in the final Constitution of 1996, which introduced the phrase "take appropriate remedial action" as opposed to "recommend".

"Since I took over as Public Protector in October 2009, we have never understood our remedial action to carry the same weight as decisions of the court," she said.

"We have always said that organs of state have a duty to implement remedial action unless a court of law finds that I was irrational in arriving at my determination."

The Public Protector urged lawyers to ensure that when advising government or any client, they take into account that such advice constitutes building blocks toward the country South Africa want to become. She urged them to join hands in giving life to the Constitution by helping transform the state so that it becomes more accountable, acts with integrity and responsiveness at all times and is optimally positioned to lead the achievement of the constitutional dream of a society where everyone's potential is freed and life improved.

The night before, the Public Protector engaged in a conversation with the Cape Jewish Board of Deputies in Cape Town. The engagement, which focussed on the work of her office, was facilitated by former South African Ambassador to Argentina, Tony Leon.

Both engagements formed part of the broader Public Protector Stakeholder Management strategy. The events are also used to live up to the dictates of Section 182(4) of the Constitution, which places a duty on the Public Protector to be accessible to all persons and communities.

For more information, contact:

Oupa Segalwe
Acting Spokesperson
Public Protector South Africa
(012) 366 7035
072 264 3273
oupas@pprotect.org
www.publicprotector.org