Public Protector looks to peers’ views on interpretation of constitutional mandate

Public Protector Adv. Thuli Madonsela on Friday used the platform she had at the International Ombudsman Institute Europe Conference in Tallin, Estonia to solicit the views of her counterparts from across the globe on the interpretation of some of South Africa’s constitutional provisions in respect of her office.

She was presenting on “Democracy Promotion and Ombudsman” alongside Polish Human Rights Defender, Ms Irena Lipowicz and European Ombudsman, Ms Emily O’reilly at the conference that has brought together participants from 30 countries around the world.

Their presentations sought to equip younger and less experienced institutions of the Ombudsman with the necessary knowledge regarding potential problems and risks that must be borne in mind prior to getting involved in the work of the Ombudsman.

Speaking on the last of the three-day conference, Public Protector Madonsela picked her peers’ brains on the meaning of her constitutional power to “take appropriate remedial action”. This was against the backdrop of increasing views back home that this power amounts to nothing but making “recommendations”. She disagrees with this view.

Public Protector Madonsela also sought the input of her equals on whether the constitutional imperative on her office to be “accessible to all persons and communities” could not be interpreted as giving the people of South Africa a “right to complain”.

If this was the case, she asked, was there a concomitant duty on the government to provide the office with adequate resources, taking into account section 237 of the Constitution which requires all “constitutional obligations” to be “performed diligently and without delay”.

Public Protector Madonsela further sought her colleagues’ counsel on the meaning of “court decisions”, which she can’t investigate in terms of Section 182(3) of the Constitution. The question came in the light of criticisms from certain quarters that she cannot dabble in administrative matters within courts such as undue delays on appeals, which her predecessors have previously dealt with. She also welcomed views on limitations relating to the utilization of the media and “moral suasion”.

During her presentation, Public Protector Madonsela also unpacked the constitutional basis for the establishment of her office and her constitutional mandate and powers as articulated in Sections 181 and 182 of the Constitution. This included her jurisdiction, the powers to make findings and to take appropriate remedial action.

She told the conference about several pieces of legislation that give her additional powers such as the Public Protector Act 23, 1994, which empowers her to “resolve any dispute” in state affairs or “rectify any act or omission”.

Public Protector Madonsela also shared on the provisions of the Executive Members’ Ethics Act, which identifies her office as the sole agency with powers to help the President enforce the Executive Ethics Code. She noted that, in terms of the Act, it was a legal non-negotiable to investigate complaints of any alleged breach of the Code.

Articulating her office’s approach, which she termed “The Makhadzi Way” of whispering truth to power after partnering with government in an offensive againt maladministration and corruption, she emphasized the point that priority was always given to “bread and butter” or ordinary people’s matters. Contrary to popular belief, such cases account for a lion’s share of her office’s workload.

Public Protector Madonsela also used the opportunity to share with her audience the key contents of the masterpiece that is the South African Constitution. Among other things, she told of the clear parameters for the exercise of public power and control over state resources as provided for in the Constitution.

She said the country’s constitutional democracy was anchored in the supremacy of the Constitution and the rule of law, adding that a judicial review was the ultimate authority on constitutional compliance. Public Protector Madonsela added that the Constitution provided for administrative scrutiny to bolster the checks and balances beyond traditional oversight such as the legislature and the judiciary.

Delegates applauded South Africa’s role in capacity building for African Ombudsman offices and the adoption of the OR Tambo Declaration on Minimum Standards for effective Ombudsman, which was adopted in February 2014.

The declaration was adopted at a conference of African Ombudsmen institutions, which was funded by the Department of International Relations and Cooperation through the African Ombudsman Research Centre, which is located in Durban and managed by the Public Protector South Africa.

The conference in Tallin has proved how diverse the institution of the Ombudsman is, even within Europe.

For more information, contact:

Kgalalelo Masibi
Public Protector South Africa
(012) 366 7006
079 507 0399

Published Date: 
Friday, September 19, 2014