Public Protector files notice for leave to appeal Western Cape High Court judgment

Public Protector Adv. Thuli Madonsela on Friday, 14 November 2014 approached the Western Cape High Court and filed a notice for leave to appeal against the judgment of Honourable Judge Ashton Schippers in the matter between the Democratic Alliance and the South African Broadcasting Corporation.

The judgment has been the subject of intensive public discourse, with some choosing to adopt it as a definitive interpretation of the extent of the Public Protector’s powers and the binding effect of the findings and remedial action of the institution.

Public Protector Madonsela believes that there is a strong chance of a higher court arriving at a different decision on the powers of the Public Protector particularly given the fact the Supreme Court of appeal previously found that the Public Protector is more than an Ombudsman. This is more so because the office now called the Public Protector was called an Ombudsman from 1991 to 1994, having been initially called the Advocate General. Furthermore, the 1996 Constitution not only changed the name but also the words used in conferring powers to the Public Protector.

At a practical level, the judgment has created wide spread confusion in society with complainants expressing concern that the constitutional promise of a cost free mechanism for the enforcement of their rights when wronged by state actors and holding government accountable is an empty one. They have been approaching the Public Protector asking what is to happen to them when government reviews the Public Protector's ruling that government wronged them and decides it is the Public Protector that is wrong.

The Public Protector is of the view that the decision places a burden on complaints in the event organs of state counter review the Public Protector's findings and remedial action and decide their conduct was not improper and that the Public Protector was wrong in finding that such conduct was improper and determining appropriate remedial action.

The judgment has directly affected the institution of the Public Protector by placing a restrictive definition on its powers and, in doing so, impacting upon its functioning effectiveness and ability to support and strengthen constitutional democracy. The adverse impact of the judgment is self-apparent.

The powers of the Public Protector and the binding effect of findings and remedial action need to be decided upon with clarity. In the absence of clarity, the ability of this institution to execute its mandate of protecting and strengthening constitutional democracy will be severely compromised.

The grounds upon which the Public Protector intends appealing against the judgment include the following:

a) The judgment does not recognize the fundamental distinction between the institution of the Public Protector and those of the ombudsman institutions to which it was compared. In particular, the institution of the Public Protector bears authentic constitutional powers in a constitutional democracy, whereas the ombudsman institutions to which it was compared function on a subordinate basis in parliamentary democracies. There are other examples of ombudsman institutions not referred to in the judgment whose powers are binding and enforceable. In addition, it is not correct that only adjudicative bodies can take binding decisions;

b) The powers of the Public Protector stem directly out of the Constitution and, hence, must be interpreted through a thorough process of constitutional and statutory interpretation; and

c) The interpretation placed upon the Public Protector’s powers will lead to an untenable stalemate in which there is no obligation on the subjects of Public Protector investigations to comply with or have the findings made and remedial action taken by the Public Protector judicially reviewed. This will cause the burden to enforce the findings and remedial action to shift to the members of the public or the complainants. A large measure of the present confusion in relation to the binding effect of the findings and remedial action of the Public Protector arises from Honorable Judge Schippers’ finding that persons or organs of state which are the subject of remedial action taken by the Public Protector may choose whether or not to comply with it. The judgment indicated that any decision not to comply is reviewable under ordinary principles of public law. This has led to confusion as to whether the onus is on the subject of the findings made and remedial action taken by the Public Protector to review them or whether the obligation is on the public or complainants to review any decision by organs of state not to comply. Given the unlikelihood of anyone that has chosen not to comply with the findings and remedial action voluntarily taking steps to judicially review the Public Protector’s findings and remedial action, the effect of the judgment is that it will be left to the public or the complainants to take steps to enforce the findings and remedial action. The Public Protector respectfully contends that this is not what the Constitution contemplates. In particular, it would contradict those provisions of the Constitution which prescribe that the office of the Public Protector is subject only to the Constitution and the law and, furthermore, that other organs of state must assist and protect institutions such as the Public Protector to ensure their independence, impartiality, dignity and effectiveness.

We wish to emphasize that Public Protector Madonsela’s participation in the matter, and her decision to appeal the judgment is not in any way an attempt to arrogate more power than her institution is granted under the Constitution but, instead, it is fueled by her constitutional duty to protect and preserve the full extent of the powers conferred on the institution of the Public Protector by the Constitution, whatever these powers may be found to be.

Most importantly, this is not a court challenge that Public Protector Madonsela is instituting in her personal capacity but, instead, it is one which she pursues out of her commitment to ensure the continued effectiveness of the institution of the Public Protector even after her tenure, and indefinitely into our country’s future.

For more information, contact:
Oupa Segalwe
Acting Spokesperson
Public Protector South Africa
012 366 7035
072 264 3273
Oupas@pprotect.org
www.publicprotector.org
Twitter: @PublicProtector
Facebook: Public Protector South Africa