Public Protector welcomes Security Cluster Ministers' withdrawal of the orders they sought against her

Yesterday the Ministers of Police, Public Works, Defence and State Security indicated in their replying affidavit that the series of five orders they had sought against the Public Protector were abandoned. The Ministers however stated that they required the Public Protector to pay the legal costs occasioned by their application.

The attorneys for the Public Protector, Adams & Adams, called upon the State Attorney to file the necessary notice of withdrawal in terms of High Court procedure and in addition to undertake to pay the legal costs incurred by the Public Protector in opposing the application.

This morning a formal notice of withdrawal was received by the Public Protector, together with a tender to pay the legal costs, including the costs of two counsel. When the Court convened at 10h00 this morning, this notice and tender of costs were recorded by the judge.

The Public Protector welcomes the abandonment by the Ministers of orders they had sought entitling them to vet a report by her. She reaffirms her commitment to complete, in compliance with law, the investigation and final report relating to the Nkandla project. In this regard it is also noted with appreciation that the Ministers in their replying affidavit filed yesterday “have no desire to dictate to [the Public Protector] when and how to release the provisional report.”

For the Public Protector, this is the important principle on the basis of which the application was opposed. Section 182 of the Constitution, read with section 181, provides that the Public Protector’s powers are to be exercised independently and without fear, favour or prejudice. Further, that other organs of State “must assist and protect” the Public Protector to ensure her independence and effectiveness. Section 182 confers on the Public Protector, the power to investigate any alleged or suspected improper conduct in state affairs or the public administration, to report on that conduct and to take appropriate remedial action. There is no provision for sharing that power with another person or entity. Section 181(4) states explicitly that “no person or organ of State may interfere with the functioning of [the Public Protector].” Also, in terms of the Public Protector Act, it is the Public Protector’s sole discretion to determine how to conduct her proceedings and to make findings.

“It is unfortunate in this regard that in an affidavit filed by the Acting State Attorney, Pretoria a request was made to the Court to refer what I stated in my affidavit regarding past obstruction experienced in the investigation ‘to the Bar Council for further investigation’, in relation to my own conduct,” the Public Protector said.

“I welcome the fact that no such request in the event was addressed to the presiding judge, and nothing further has been said in support of it. I and my team cannot allow ourselves to be intimidated in any way in the course of any investigation.”

The Public Protector hopes that a co-operative relationship with all parties involved in the investigation will be restored and subsist, without the incurrence of yet further legal costs to be borne by the tax-payer.

For more information, contact:

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

Published Date: 
Friday, November 15, 2013