Public Protector Research Articles

An Analysis of the Role of the Public Protector in Fostering a Democratic System of Government in South Africa

An Analysis of the Role of the Public Protector in Fostering a Democratic System of Government in South Africa

Re-evaluating Oversight of South African Defence Procurement: Can Combined Assurance Help Extract Full Accountability from the Department of Defence?

The Department of Defence and the South African National Defence Force have been plagued by defence procurement irregularities since the inception of democracy. As a result, several scholars have questioned the ability of certain oversight mechanisms to conduct proper oversight of the military, and of defence procurement specifically. The study on which this article reports therefore aimed to evaluate the ability of Parliament, the Military Ombud, the Auditor-General of South Africa, and the Public Protector to extract accountability from the Department of Defence for its defence procurement activities. Discussion of these four mechanisms will constitute the basis for evaluating whether a renewed approach to oversight, in the form of combined assurance, might be able to allow for extracting greater accountability from the military for its non-compliance with the regulatory frameworks of South African defence procurement. Keywords: Department of Defence, South African National Defence Force, Defence Procurement, Combined Assurance, Oversight, Accountability

Legislative Oversight and Executive Accountability in South Africa

A glance at political theory reveals a preoccupation with the corrosive nature of power, in particular with how to ensure that the governors are sufficiently accountable to the governed. Legislative oversight is a constitutional requirement in the South African system of government. However, poor performance, maladministration and a lack of accountability in various government institutions have continued to be a major challenge. In recent years the implementation of legislative oversight has proven to be a challenge, with findings of abuse of state power revealed by reports from the Office of the Public Protector as well as corruption scandals in procurement processes. This study examines the role of parliament in holding the executive accountable in line with the constitutional values of transparency, accountability and responsiveness. Apart from delineating the reach of parliament's powers and functions, the main thrust of the study, given the existing vicissitudes in our constitutional edifice, including the failure of parliament to hold the executive accountable, is on how to strengthen the institution of parliament in its oversight role.

HOLDING THE EXECUTIVE TO ACCOUNT? Public Protector v President of the RSA 2021 (9) BCLR 929 (CC)

This case is part of a growing body of jurisprudence relating to the Public Protector (PP). In particular, it concerns the PP’s mandate, contained in section 182 of the Constitution of the Republic of South Africa, 1996 (the Constitution), to “investigate any conduct in state affairs, or in the public administration, that is alleged or suspected to be improper or to result in any impropriety or prejudice”. The PP is further empowered in terms of the Public Protector Act (23 of 1994) (PP Act) to investigate, inter alia, maladministration, the unjustifiable exercise of power and dishonest conduct.In terms of this statutory framework, the PP’s primary function is to hold the executive to account. The Constitutional Court judgment that is the focus of this case note is an example of the PP attempting to hold the President accountable, but failing to do so as a result of producing an error-strewn report that was rejected by a full bench of the High Court and by a majority of judges in the apex court. On the facts, it is possible that had another PP produced a different report – one that satisfied the judges’ concerns – the President might have been less successful in avoiding public accountability.Apart from the main issue of the (at time of publication) now-suspended PP’s inability to hold the President to account, the judgment is significant from an administrative law perspective. In particular, the judgment adds to the debate on whether the PP’s remedial action amounts to administrative action.Although the Supreme Court of Appeal (SCA) held in 2018 that the PP’s remedial action does not constitute administrative action, the question has yet to be definitively dealt with by the Constitutional Court, with judges generally being content to leave the question open. Confusingly, the court a quo held that it was common cause that the PP’s reports do not amount to administrative action, but the judgment nevertheless made numerous references to the right to just administrative action. While Jafta J chose to leave the question open in Public Protector v President of the RSA (2021 (9) BCLR 929 (CC)), he engaged with the SCA’s judgment in Minister of Home Affairs v Public Protector (2018 (3) SA 380 (SCA) (Home Affairs)) and set out some guidelines on how the issue could be dealt with in the future.

FETTERING OF PRESIDENTIAL DISCRETION: DID THE PUBLIC PROTECTOR OVERREACH?

The President’s power to establish a commission of inquiry confers a plethora of discretionary powers for the Head of State. In the exercise of this power, the President acts alone, seemingly without the constitutional obligation to consult any public functionary or institution. This creates challenges for the question of accountability that attends the exercise of the power. Following the release of the State Capture Report, the Public Protector found that the President had inter alia outsourced his power to appoint cabinet members to the Gupta family, notwithstanding that he was the only one empowered to exercise the power in terms of the Constitution. Consequently, the Public Protector directed the President to establish a commission of inquiry to probe the allegations further. The President argued that the Public Protector had overreached her powers and trespassed upon his powers as Head of State. In the State Capture judgment, the High Court found that the Public Protector’s direction to the President to establish a commission of inquiry was lawful and binding. This article investigates whether the Public Protector may compel the President to establish a commission of inquiry, and whether such an order does not violate the doctrine of the separation of powers. It also probes the nature and extent of the Public Protector’s investigatory powers, vis-à-vis the President’s discretion in appointing a commission of inquiry. The article argues that the President’s power in the process is too broad and should be curtailed to enhance accountability.

THE ROLE OF NATIONAL HUMAN RIGHTS INSTITUTIONS IN THE PROMOTION AND PROTECTION OF HUMAN RIGHTS IN UGANDA AND SOUTH AFRICA: A COMPARATIVE EVALUATION

The United Nations has, through several resolutions, acknowledged and recognized the important role national human rights institutions can and do play in the promotion and protection of human rights. Notable among those resolutions is Resolution48/134 of 20 December 1993, which lays down a number of principles relating to the status of such institutions. This recognition has been reaffirmed by the Office of the United Nations High Commissioner for Human Rights through Resolution 2003/76 of25 April 2003. The last two decades have seen unprecedented political and constitutional changes in Africa as several African states have enacted new constitutions in an attempt to transform themselves into democratic societies. In the context of human rights protection, one of the main outstanding features of these new constitutions is that most of them contain bills of rights and the other is that they establish national institutions for the promotion and protection of human rights. Both the Ugandan constitution and the South African constitution fall into that category. It is against that background that this article seeks to evaluate, in a comparative way, the role that the national human rights institutions in the two countries can and do play in the promotion and protection of human rights. This role will be assessed in the context of the powers, functions, achievements and effectiveness of these institutions; thechallenges they face and how they deal with them. In Uganda, the relevant institutions include the Uganda Human RightsCommission and the Inspectorate of Government, while in South Africa they include some of the so-called Chapter 9 institutions, namely, the Public Protector; the Human Rights Commission; the Commission for the Promotion and Protection of the Rightsof Cultural, Religious and Linguistic Communities; and the Commission for Gender Equality. There are other institutions in both countries that play less direct and significant roles in human rights protection. This article undertakes a comparative survey of the main human rights institutions with a view to determining the extent of the role they play in promoting and protecting human rights, how this role can be enhanced and how the two countries can learn from each other.

Case Notes: Jurisdictional Quandaries Triggered by a New Variant for Dismissal

While the imperative tone of the Constitutional Court (CC) in Steenkamp v Edcon Ltd (2016) 37 ILJ 564 (CC) (Steenkamp I) leaves no doubt that the Labour Relations Act 66 of 1995 (LRA) does not contemplate invalid dismissals or an order declaring a dismissal invalid, or of no force or effect, the extent of the Labour Court’s (LC) jurisdiction to grant appropriate relief declaring dismissals unlawful and invalid because they constitute encroachment of the applicants’ fundamental rights is a vexed question. In Steenkamp I it was decided that when an applicant alleges that a dismissal is unlawful (as opposed to unfair), there is no remedy under the LRA. What this means is that the LC lacks jurisdiction to make any determination of unlawfulness. A multi-layered and complex jurisdictional problem arose in Chubisi v SABC (SOC) Ltd (2021) 42 ILJ 395 (LC) (Chubisi) where the question was whether Ms Chubisi could obtain a declaratory order that the termination of her contract of employment was unconstitutional, unlawful, invalid and of no force and effect. At issue was the termination of employment pursuant to non-recognition of the employee’s contract by the public broadcaster ostensibly to give effect to the Public Protector’s remedial actions. There is no doubt that the remedial actions of the Public Protector have a binding effect, unless, of course, they are reviewed and set aside (EFF v Speaker of the National Assembly 2016 (3) SA 580 (CC); see also Mhango & Dyani-Mhango, ‘The powers of the South African Public Protector: A note on Economic Freedom Fighters v Speaker of the National Assembly’ 2020 African Journal of Legal Studies 1). The court held in Chubisi that the termination of the applicant’s contract of employment by the South African Broadcasting Corporation (SABC) was unlawful, invalid and of no force and effect. The question that arises, therefore, is whether the LC in granting a declaratory order to the effect that the termination of employment was unlawful and invalid misinterpreted and misconstrued the ratio of Steenkamp I. To answer this question, the reasoning of Tlhotlhalemaje J in addressing jurisdictional difficulties requires close scrutiny and analysis. In effect, the resolution of the issues emerging from Chubisi allows for a detailed examination of the import of Steenkamp I. This also provides a platform for examining the fundamental but somewhat tenuous distinction between the jurisdiction and the powers of the LC. In legal parlance, the critical task for the court in any given case is to decide whether the statutory provision on which an applicant relies to found jurisdiction is indeed one that confers jurisdiction. At a more general level, Chubisi implicates corporate governance malaise at the SABC with the unfortunate reality of retrenchments. Therefore, a concise discussion of the corporate governance challenges is merited.

The Binding Nature of the Ombudsman’s Remedial Actions in Lesotho: Lessons from South Africa

The Constitution of Lesotho is regarded as liberal, with the separation of powers of the executive, judiciary and legislature, but provision was made for institutions to oversee the exercise of such powers. One of these is the Office of the Ombudsman, which has wide-ranging powers to investigate malpractice in public administration and to make recommendations for remedial action. These powers notwithstanding, there is a paucity of judicial precedent and scholarship on the binding nature of the remedial action of the Ombudsman. The main question is whether the remedial action of the Ombudsman is binding, which this article seeks to investigate and determine whether South African jurisprudence could be helpful in the case of Lesotho. The binding nature of the Public Protector’s remedial action under the Constitution of South Africa has been a subject of considerable judicial and scholarly engagement in recent times. While the subject is still yet to be settled in South Africa, it nevertheless has developed principles that could assist in both the interpretation and reform of the Ombudsman’s powers in Lesotho.

The Public Protector of South Africa: An Ombudsman of A Special Type

The Public Protector of South Africa: An Ombudsman of A Special Type

The Constitutional Court of South Africa: Thoughts on its 25-Year-Long Legacy of Judicial Activism

After almost 25 years of what could justifiably be called transformative change in South Africa, a truism is that the country’s new legal order, established by the Constitution in 1993 and 1996, provides the critical foundation of peace and security upon which its freedom has been built. The Constitutional Court was one of the most important of the new democratic institutions in the shaping of the country’s position as a constitutional democracy, upholding the values for which millions of people, black and white, had fought. This article is a brief reflection on the role of the Court in establishing the meaning of this democracy and giving it effect. The main goal of the article is to understand how the Court’s new jurisprudence works in particular contexts, how its work is related to crime and punishment, and what it means for the rights of marginalised groups in society. Using the examples of the Court’s decision in Makwanyane on the death penalty, and the Court’s decision on the findings of the Public Protector’s report on Nkandla, the article finds that the Court’s new jurisprudence takes quite a different view of legal developments in South Africa, insofar as the jurisprudence entrusts broad discretion to the Court and emphasises the need for sustained leadership of the Court to advance the battle for fundamental human rights, the rule of law, and democratic accountability.

A critical appraisal of the recruitment and selection process of the Public Protector in South Africa

Orientation: The process of recruitment and selection the Public Protector (PP) needs to ensure that the most ‘fit and proper’ candidate is appointed. The process needs critical scrutiny for such a fit and proper candidate to be selected. Research motivation: South Africa’s superior courts, including the Constitutional court have recently (in 2019) labelled the current Public Protector; dishonest and Incompetent in carrying out the duties of the PP office. Research purpose: This article critically appraises the recent process that culminated in the appointment of Ms Busisiwe Mkhwebane as the fourth Public Protector in the democratic South Africa. Research approach: This article analysed documents, including the Constitution of the Republic of South Africa, Minutes of the meetings of the Adhoc Committee established by parliament to lead the process of the recruitment and selection of the Public Protector, and Public Protector Act . Main findings: We found that the process of recruiting and selecting the Public Protector as it currently stands in South Africa, through the sections of the constitution, completely ignores the principles of recruitment and selection that help avoid sentiments of bias and selecting incompetent persons. Practical implications: The findings of this paper call for a critical evaluation of the discretion that the constitution gives to only the SA parliament to initiate and undertake the process of the recruitment of the public protector. Contribution: The contributes to the role that Human Resources Management discipline needs to play in SA, beyond its preoccupations with corporate organisations, to influence professional ethics in the Public Sector.

Notes: ‘Observations’ on the State Capture judgment

This note concerns a controversial issue that has, surprisingly, received limited academic interrogation: whether the Public Protector has the power to instruct the President of South Africa to appoint a commission of inquiry. In this respect, I critique a high court decision which answered the question in the affirmative. I contend that the judgment contradicts prior case law, including Constitutional Court precedent. Thus, I argue that the court misconstrued the law on the President’s powers, particularly when it concluded that those powers are not purely discretionary but entail ‘responsibilities’ which are ‘coupled with a duty’. This reasoning led the court to conclude that the President thus has a constitutional ‘obligation’ to appoint a commission. In summary, I take issue with the court’s conclusion that the Public Protector has the power to instruct the President to appoint a commission of inquiry. I conclude that the decision caused uncertainty on the limitations of the Public Protector’s powers. I further say it is questionable whether the commission, better known as the ‘State Capture’ commission, was established lawfully.

CONSTITUTIONALISM IN DEMOCRATIC SOUTH AFRICA: CELEBRATIONS, CONTESTATIONS AND CHALLENGES

South Africans often proudly proclaim that our Constitution is one of the most progressive in the world. Yet if you ask most South Africans how they really feel about gay rights, abortion and the death penalty, their answers, more often than not, contradict the values enshrined in the Constitution. (Ahmed 2014) This is the sobering assessment of the Chief Executive of the South African Human Rights Commission 20 years into democratic South Africa. The document adopted by The Constitution of the Republic of South Africa Act 108 of 1996 was considered an exemplary showpiece for the new democratic, human rights based era — embraced as "proudly South African" among the world's most enlightened legal frameworks. Taking stock almost two decades later, however, constitutionality seems to have not yet been deeply and firmly anchored in public awareness or ingrained into a ] social fabric guiding the fundamental values, ethics and norms as reflected by ordinary public perception and opinion. Nor have policy makers in the government seemingly internalised an unconditional respect for and recognition of the governance principles enshrined in this Constitution, as some recent examples seem to suggest. The current controversy around the "spy tapes", but even more so the contested role of the public protector — dubbed "a jewel in South Africa's constitutional crown" (Pieters 2014) — and her stance with regard to Nkandla and the obligations of the head of state to respond to her recommendations are obvious tips of the iceberg. But current discourses at the same time are a mirror image of the ongoing struggles over the power of definition and the interpretation, as well as adherence, to the rules of the game as laid down in the normative framework. As constitutions elsewhere, there is a discrepancy between what is stated, how it ought to be understood and interpreted, how it should be adhered to and applied, and what the intended effects, as well as the real consequences are. It therefore is not by accident that debates and contestations over the meaning and implications of constitutional principles are an eminently political affair and an integral part of governance. It would be more worrying, if this would not be the case, since this would suggest that those in control over society reign supreme in the sense of governing without checks and balances. So then let's have a closer look at the issues at stake.

The Powers of the South African Public Protector: A Note on Economic Freedom Fighters v Speaker of the National Assembly

Abstract The scope of the powers of the Public Protector was one of the main questions for determination by the Constitutional Court in the landmark case of Economic Freedom Fighters vs Speaker of the National Assembly. This note critically examines that case, especially in relation to its finding that the remedial actions of the Public Protector have a binding effect. The note argues that the court erred by ignoring the text and history of the Constitution in its interpretations of the powers of the Public Protector. We argue that the Court got it wrong when it dismissed an argument that the powers of the Public Protector should be sourced from the Public Protector Act and not directly from the Constitution. In its critical analysis of Economic Freedom Fighters vs Speaker of the National Assembly, the note engages with two other related decisions from lower courts.

Three Ways to Redefine the Romance Between the Central Bank and Financial Markets in South Africa

In the past few years, a number of stakeholders have questioned the mandate of the South African Reserve Bank (SARB), the country’s central bank. Most notably, the Public Protector, some members of the ruling African National Congress (ANC) and the opposition party Economic Freedom Fighters (EFF), and even some (law) academics have called for the government to change the role or mandate of the SARB. At the same time, these loud calls to transform national institutions should not surprise anyone living in South Africa because they derive much of their strength from the fact that – as a consequence of a brutal history of institutionalized and legislated inequality, discrimination and apartheid – the country posts one of the world’s widest income disparities. Still, changing the SARB’s mandate is not as simple as amending the law that provides for it; it requires challenging the neo-liberal economics that mostly informs that law. Changing the SARB’s mandate also invites policy makers to rethink the way the central bank closely relates to financial markets. Accordingly, this article considers three possible ways to redefine the SARB’s legal relationship with financial markets. It examines insights from: (1) Keynesianism, (2) state-developmental-ism, and (3) sustainable development. It assesses these perspectives to determine which one could best replace the neoclassical economics behind the current SARB’s mandate. In the end, while the article does not settle on any of these alternatives, it puts forth a few pointers that policy makers could use in (re)fashioning a model for the SARB. The article argues that the calls for the transformation of the SARB’s role resonates in the South African context, but that the language of transformation and the legal approaches to this burning question have so far failed to indicate how this should be done in practice. The relationship between the SARB and financial markets powerfully illustrates the limits of these calls for transformation.

The Powers of the Office of the Public Protector and the South African Human Rights Commission: A Critical Analysis of SABC v DA and EFF v Speaker of the National Assembly 2016 3 SA 580 (CC)

This article assesses South African Broadcasting Corporation v Democratic Alliance 2016 2 SA 522 (SCA) and Economic Freedom Fighters v Speaker of the National Assembly 2016 3 SA 580 (CC) and to a lesser extent the state of capture judgments. All of these deal with whether the findings and remedial action of the Public Protector (PP) are binding in certain circumstances. The judgments significantly change the impact and effect of findings made by the Office of the Public Protector (OPP) and have important consequences and lessons for other Chapter 9 institutions. It is apparent from these judgments that there was a concerted attempt to undermine the OPP by systematically disrespecting and not implementing the remedial action. It is argued in the article that egregious violations by public officials contributed to the courts' rulings that the findings of the PP may be binding. The article also explicitly records the unlawful conduct of public officials and the resultant cost and consequence in the hope that conduct of this nature is not repeated. It also specifically notes that the major findings in the Nkandla, SABC and State of Capture reports have withstood judicial scrutiny. Regrettably, this exalted standard has not always been replicated in the reports of the present PP. Finally, the article submits, on the basis of these judgments that the findings of the South African Human Rights Commission should in certain circumstances be binding.

The implications of the Public Protector's remedial action directing the exercise of discretionary constitutional powers: separation of powers implications

ABSTRACT This article considers the judgments of the North Gauteng High Court in which the remedial action of the Public Protector was reviewed. In President of the RSA v Public Protector, delivered in 2018, the Court upheld the remedial action directing the President to appoint a commission of inquiry without having regard to the separation of powers doctrine. The decision stands in contrast to an earlier decision (SARB v Public Protector) and a later decision (RSA v Public Protector) where the Court set aside the remedial action of the Public Protector that also purported to direct the exercise of discretionary constitutional powers. In these cases, the remedial action was set aside after proper regard was had to the separation of powers doctrine. This article therefore considers these diverging approaches where the court reviews the remedial action of the Public Protector directing the exercise of discretionary constitutional powers. It considers the effects of not consistently having regard to the separation of powers doctrine in reviewing the remedial action of the Public Protector. It is argued that the inconsistent invocation of this doctrine leads to legal uncertainty specifically in relation to the exercise of the President's discretionary constitutional power as head of state to appoint a commission of inquiry. Furthermore, the article considers the effect the failure to review the Public Protector's remedial action consistently from a separation of powers perspective may have on the Public Protector's ability to adequately fulfil the mandate of strengthening constitutional democracy. Keywords: Public Protector, remedial action, separation of powers, commissions of inquiry.

What happens on the beach stays on the beach: a speculative legal analysis of nudism in South African protected areas

ABSTRACT The Hibiscus Coast Municipality assumed it had the authority to issue or amend bylaws to formalise an existing nudist friendly beach within the Mpenjati Nature Reserve. Following a complaint, the Public Protector concluded the same when she investigated the legality of the Municipality's actions. Two immediate questions arise. The first, whether the Municipality and the Public Protector were correct in their view that the Municipality has the authority over the beach irrespective of the presence of a protected area, and the second, whether nudism is a legal activity therein. Both the Municipality and the Public Protector overlooked the relevance of the nudist friendly beach being located within a protected area and the power of the management authority to determine the nature of the tourism that takes place therein. Nudism within a protected area appears not to be in conflict with the Sexual Offences Act 23 of 1969 and hence may be a legitimate activity within such area. The National Environmental Management: Protected Areas Act 57 of 2003 and the Regulations thereunder appear not to contain provisions that prohibit nudism or other niche nature based tourism activities. Provided that the activity conforms to the purpose of the Act and proteced area management plan and zonation and does not pose a significant physical risk to the integrity of the protected area, the conservation agency may be hard-pressed to refuse a request for a niche nature based tourism activity, such as nudism, to be included in the zonation - should one be received.1 Key words: Municipality, National Environmental Management: Protected Areas Act, nature based tourism, nudist friendly beach, protected area, Public Protector, Sexual Offences Act, zonation.

TRANSFORMATIVE ADJUDICATION AND THE PLACE OF ADMINISTRATIVE LAW IN SOUTH AFRICAN JURISPRUDENCE: ABSA BANK LIMITED v PUBLIC PROTECTOR

The primary purpose of administrative law is to regulate the exercise of public power and the performance of public functions, which is informed by the constitutional principle of the rule of law.1 This paper argues that what underlies this objective in post-1994 mainstream transformation jurisprudence is a transformative approach in interpreting the Constitution,2 by which all exercises of power must be justified, including judicial interpretations.3 Klare coined this approach as ‘transformative constitutionalism’.4 This paper critically examines the decision in Absa Bank and Others v The Public Protector and Others (Absa case)5 concerning the High Court’s approach to adjudication in the administrative law and the role of a transformative constitutionalist approach to adjudication. The first part of this paper contains a brief exposition of the place of administrative law in the South African legal regime. In the second part of the paper, we provide a summary of the Absa case. We then provide a focussed discussion on procedural fairness as a cornerstone of good governance with respect to administrative conduct in the third section of the paper. The fourth part of the paper sets out what a transformative approach to adjudication is, including a discussion on how the Court in Absa dealt with the standard of fairness in relation to the Public Protector’s conduct from a transformative constitutionalist lens, on the one hand, and a critique on the Court’s application of the established principles of administrative law, on the other hand. Lastly, we conclude with recommendations in response to the Court’s seemingly split approach to transformative adjudication.

Protecting taxpayer information from the public protector – A ‘just cause’?

Under the Tax Administration Act, 2011 (TAA), taxpayers enjoy a right to privacy of information disclosed to the South African Revenue Service (SARS). This note shows that tax officials are obliged to protect the secrecy thereof. It is argued that the Commissioner for the SARS correctly resisted compliance with a subpoena issued by the Public Protector for access to the records of former President Jacob Zuma. If it acquiesced without objection, shock waves would have reverberated through South Africa’s tax community. It is contended that the Commissioner’s decision to maintain taxpayer secrecy under pain of a potential criminal sanction contributed to restoring some of the lost confidence and respect for the SARS which has, in recent times, endured reputational damage owing to internal squabbles which morphed into public scandals. This note hypothesises that CSARS v Public Protector is good authority for the proposition that governmental departments and state institutions not expressly mentioned in s 70 of the TAA do not have statutory rights of access to taxpayer information and must, to gain access, follow due process. This note argues that the judgment in casu is not only a victory for taxpayer rights but also for the rule of law.