Public Protector Research Articles

Media coverage of reports published by the Québec Ombudsman: an automated content analysis

This article examines media coverage of reports published by the Québec Ombudsman, a body that upholds the rights of citizens and that goes by the name of ‘Public Protector’. A large part of the Québec Ombudsman’s mandate is to conduct investigations and issue recommendations following infringements by Québec’s administrative apparatus that affect one or several citizens. These infringements are reported to the ombudsman by citizens, which means that it must be visible to the public. Such visibility relies, to a great extent, on the media, hence the importance of analysing the Québec Ombudsman’s media coverage, a subject that has received little attention in the academic literature. Our article reveals that media coverage of the ombudsman’s reports is inconsistent. We also observe that, on average, newspaper articles adopt a more negative tone than the reports themselves. However, contrary to our expectations, reports with a more negative tone are not necessarily given more media coverage. The best predictor of the presence or absence of media coverage and tone congruence between reports and articles appears to be the presence of a press release issued by the ombudsman. Points for practitioners This article examines media coverage of reports published by the Québec Ombudsman. Based on an automated content analysis, it appears that the media coverage of the reports is not explained by the tone used in the documents published by the Québec Ombudsman. Reports that are more negative are not necessarily given greater coverage by journalists than positive reports. Direct communication efforts with the media (e.g. a press conference and the publication of a press release) are more likely to lead to media coverage.

An Analysis of the Public Protector's Investigatory and Decision-Making Procedural Powers

This article critically analyses the Draft Rules to the Public Protector Act 23 of 1994 and examines the efficacy of the Public Protector’s decision-making procedural powers. Several procedural lacunae are identified. In particular the article evaluates the procedural distinction between an investigation and a hearing as defined in the Draft Rules and the Act. It is unclear from a reading of the Draft Rules whether a hearing is simply part of the Public Protector’s investigatory process or whether it functions as a separate quasi-judicial decision-making process in its own right. A significant lacuna is the failure to specify the procedural protections available to an implicated person or a witness in an investigation or a hearing. A primary problem with the Draft Rules is the very broad procedural powers awarded to the Public Protector which are open to procedural abuse. The article suggests a number of amendments to the Draft Rules which should be modelled on the procedural methodology applied in the Special Investigating Units and Special Tribunals Act 74 of 1996. Moreover, the article suggests that the decision-making powers of the Public Protector should be divided between the Public Protector and an independent and temporarily appointed adjudicator.

Prospects and Challenges of Radical Economic Transformation

In 2014, the then president of South Africa, Mr Jacob Zuma, delivered his State of the Nation Address in Parliament and promised that economic transformation would take centre stage. This promise was made against the backdrop of transformation having stalled and difficulties being experienced in reducing social inequality and poverty. He called on social partners to debate the issue of wage inequality and the possibility of instituting a national minimum wage to reduce income inequalities. He promised that the structure of the economy would be transformed through industrialisation and broad-based black economic empowerment and through strengthening and expanding the role of the state in the economy. However, these commitments have not been kept and remain under threat given the extent of corruption in national government departments and state-owned enterprises (SOEs). The revelations in the financial reports of the Public Protector and the Auditor-General on SOEs raise key questions relating to the role of the national government departments and SOEs in driving radical economic transformation. A fundamental and radical change is required if the economy is to be run to the benefit of all poor South Africans, the majority of whom are black people. One possibility is to institute ethical leadership and an executive that is accountable. Twenty-three years into freedom and democracy, and the majority of South Africans, black people in particular, are still economically disempowered. This is a concern given the developmental objectives of government as espoused in its National Development Plan (NDP) 2030. As long as the country continues to battle with the persistent triple challenge of poverty, unemployment and inequality, radical economic transformation remains a pipe dream. Considering the current state of affairs, the objective of radical economic transformation (i.e. to place the economy on a qualitatively different path that ensures more rapid and sustainable growth, higher investment, increased employment, reduced inequality and the deracialisation of the economy) is far-fetched. Any political posture not aimed at giving effect to the NDP, the New Growth Path and the Industrial Policy Action Plan to stimulate growth, employment and the re-industrialisation of the South African economy will not lead to radical economic transformation.

Supply chain - a service delivery enhancement or an impediment

Supply chain management in the Republic of South Africa is a cause for concern. The Auditor General South Africa, year in and year out, raises corruption fears emanating from supply chain. The Public Protector, Special Investigation Unit and National Prosecuting Authority also lamented government officials flouting supply chain procedures for their own enrichment. Supply chain management enhanced service delivery by procuring quality goods and services transparently and cost effectively. Paradoxically, often than not, the same supply chain is perceived to be actually halting service delivery because of the collusion between corrupt individuals in the system and those in the civil society and the private sector. Case studies employed drew primary and secondary data from documented sources to validate the argument whether supply chain enhanced or impeded service delivery and thus informed response mechanism and compelling conclusion. The study analysed supply chain case studies and determined at the end that supply chain enhanced service delivery, but impeded in the way it was implemented.

Critical Reflections on State Capture in South Africa

Institutionalised state corruption has morphed into a phenomenon entitled state capture in South Africa. State capture is the repurposing of the country’s institutions towards private individual interests. In the process public interest is jettisoned in favour of private material gain for select connected individuals in the private and public sector. The issue of state capture dominated public debate about the future of governance in South Africa after the former Public Protector, Thuli Madonsela’s report titled State of Capture was released in late 2016. This document highlights how the Zuma-Gupta patronage network used state companies to enrich themselves. While some believe state capture to be a fairly new phenomenon, many analyst argue that it had been part of the dealings of the ruling party for years. It could be argued that it started post-1994, after the state adopted a variety of policies to re-allocate resources across a broad sector. This included incentives for black industries and Black Economic Empowerment strategies. This radical economic empowerment meant controlling the height of the economy instead of creating black-owned small and medium-size enterprises. With that in mind, this article seeks to provide critical reflections of state capture in South Africa.

Review of the Constitutional Powers of the Director of Public Prosecutions and Public Protector in Zambia: A Case Study Dissertation Paper

The office of Director of Public Prosecutions and Public Protector (hereinafter referred to as the DPP and PP‘‘) are public office. They are one of the most profound pillars in the maintenance of Law and order in any society. The offices of the Director of Public Prosecutions and Public Prosecutor are created by the Constitution respectively as one of the Constitutional offices for the benefit of republic‘s interest in carrying out prosecutions of criminal offenders and Defending People‘s rights, rule of law, transparency and accountability in the courts of Law. Articles 180(1) and 243(1) of the Constitution of the republic of Zambia (hereinafter referred to as CAP 1‘) establishes the office of the DPP and The Article provides; There shall be a Director of Public Prosecutions who shall be appointed by the President, subject to ratification by the National Assembly1.In exercise of its duties, it is most certainly clear that the decision of whether or not to prosecute is not an easy one to make. It is very challenging as there is no concise authority for a prosecutor to be guided by in reaching a decision as whether to mount a prosecution or not. The Constitutional Position of the powers of the DPP is such that no authority other than itself can order the office and the office holder to prosecute a person.As per Constitutional provision, the DPP is the Chief Public Prosecutor of the Government of the Republic of Zambia and his role is limited to the Constitutional functions of advising and controlling Criminal prosecutions.This research paper will propound on reviewing the Constitutional powers of the DPP in relation to the entering of a Nolle Prosequi. The paper will achieve this by walking the reader through a series of fundamental topics within and around the office of the DPP in relation to its establishing and regulatory Statues. In the recent past, this public office‘s tenets have come to the media attention of citizenry quite often and this has risen what has somewhat been a dormant eye on what the office is and its significant and in particular, its powers and discretions in relation to a Nolle Prosequi. In effect, after such review, this research paper 1. Article 180(1) of the Constitution of the Republic of Zambia 2016, CAP1, p.75 8will provide recommendations how best the sacred office of the DPP can better perform its Constitutional powers in relation to the entering of a Nolle Prosequi,

The Guptas, the Public Protector’s Report and Capital Accumulation in South Africa

The Guptas, the Public Protector’s Report and Capital Accumulation in South Africa

The Remedial Action of the "State of Capture" Report in Perspective

In the State of Capture report the public protector instructed the president to appoint a commission of inquiry to investigate the capture of state institutions by the Gupta family. The president and his family are personally implicated and due to a conflict of interests, the public protector limited both his choice of a commissioner to conduct the inquiry and the power to specify certain terms of reference. In the Economic Freedom Fighters, the Constitutional Court ruled that the public protector's remedial action is legally binding and must be executed by the state organs concerned. President Zuma challenges the remedial action on the basis that it is the sole prerogative of the head of state under section 84(2)(f) of the Constitution to appoint commissions of inquiry and that it is an unfettered discretionary power, which may not be limited. It is not only doubtful whether the responsibility to appoint commissions of inquiry is invariably a discretionary power; it is also doubtful whether the president has an unfettered discretion. In the case of a conflict of interest the president would in any event be barred from taking a decision in terms of the nemo iudex maxim if the decision could be tainted by bias. The difficulty is that section 90 of the Constitution does not regulate the ad hoc exercise of section-84(2) powers by another state organ when the president should recuse himself from taking a decision. The limitations imposed by the public protector in regard to the commission of inquiry appear to be the best solution under the circumstances.

Socio-Economic Rights and Expanding Access to Justice in South Africa: What Can Be Done?

This chapter seeks to address the pressing question of how to improve access to justice in South Africa with a focus on socio-economic rights. It seeks to accomplish this through, firstly, conceiving of access to justice as a capability and exploring its importance. That, in turn requires attending to two central aspects: the internal dimension – empowering individuals to make claims – and the external dimension – relating to the design and availability of adequate institutional mechanisms to hear claims and adjudicate upon them. The chapter then considers practically the shortcomings in relation to access to justice in South Africa on both dimensions, internal – such as a lack of education – and external – such as the inadequate funding of chapter 9 institutions and the inability of Magistrate’s Courts to hear fundamental rights matters. Importantly, the institutions dealing with access to justice are conceived of holistically and include not only the courts but also the Public Protector and South African Human Rights Commission. Having analyzed the obstacles, the chapter seeks to consider solutions to these problems and makes concrete policy recommendations to enhance access to justice in the country. It draws on a comparative dimension from best practices in India and Colombia in making these recommendations. The recommendations include enhancing education and simplified procedures (such as the tutela in Colombia) on the internal dimension. On the external dimension, I consider expanding the capacities of chapter 9 institutions, creating specialist courts, expanding the jurisdiction of lower courts and distinguishing structural and individual cases.

The Public Protector as a Mechanism of Political Accountability: The Extent of its Contribution to the Realisation of the Right to Access Adequate Housing in South Africa

This paper is premised on the concept of political accountability which aims to hold accountable government for its action and or omission. Political accountability encompasses a number of mechanisms such as the judiciary and the ombudsman. Courts have been instrumental in enforcing the realisation of the right to access to adequate housing in South Africa. This paper argues, however, that the judiciary is not the only enforcing avenue because other mechanisms of political accountability may also contribute to the realisation of the right to housing. The paper, therefore, explores the extent of the Public Protector's contribution to the realisation of the right to access to adequate housing. The paper then argues that it is through its functions that the Public Protector exercises its accounting role in the realisation of the right to access to adequate housing. The paper, however, cautions that the Public Protector is not an alternative dispute resolution institution parallel to courts. But that the Public Protector complements the role played by courts by offering another medium through which such right may be realised.

Politics without morality and accountability: The Nkandla case from a deontological perspective

The Nkandla controversy has long dominated South African politics and has seemingly been endless. This article revisits the Nkandla issue from the perspective that it fails the Kantian categorical imperative (i.e. CI) and attempts to explain the problem of individual as well as organisational or structural corruption, in which the author contends the Nkandla controversy to be grounded. This article opens a discussion on the relevance of Kantian theory in confronting the matter of Nkandla. The author argues that Kant’s moral theory should not be viewed simplistically but from a rational position of internalised moral maxims or precepts. The Nkandla project is interrogated in relation to the former Public Protector’s and Minister of Police’s reports on the Nkandla ‘security upgrades’. It is the author’s view that South Africans are demanding accountability insofar as the Nkandla project is concerned, since moral attitudes are an integral and necessary part of our everyday lives. It is the author’s contention that the President and the executive have no desire to be accountable and transparent in the Nkandla matter. The aftermath of Nkandla controversy has changed the face of South Africa’s political environment completely. The author further argues that holding political elites accountable should not be regarded as hostility towards those held responsible and the African National Congress as political organisation. The author also looks at the Constitutional Court ruling on this matter.

Patronage, state capture and oligopolistic monopoly in South Africa: The slide from a weak to a dysfunctional state?

The aim of the article is to investigate the phenomenon of state capture from a political perspective. In the literature, discussions around state capture areprincipally done from an economic context, not from a political perspective. The viewpoint in the article is that a more multi-faceted political approach is necessary, because the eroding of the role of the state is essentially a political problem. The phenomenon of state capture should therefore receive more scholarly attention within the political sciences, so the focus of this article is on addressing the problem of state capture within a political context. Here, the link between corruption and state capture is outlined and the difference between the two concepts is shown to be only a matter of degree.In the case of corruption the outcome is uncertain, while in the event of state capture the outcome is more definite as a result of the control an external agent exerts over a political functionary. The article also addresses the important tipping point, when a weak state – with high levels of corruption – lapses into a dysfunctional state. The finding is that the degradation from a weak to a dysfunctional state occurs during state capture when resource allocation – a core function of government – is controlled by outside agents. In the concluding section reference is made to the Public Protector’s report and its alignment with the theoretical features of state capture.

A politics of accountability : how South Africa’s judicial recognition of the binding legal effect of the Public Protector’s recommendations had a catalysing effect that brought down a president

A politics of accountability : how South Africa’s judicial recognition of the binding legal effect of the Public Protector’s recommendations had a catalysing effect that brought down a president

An Appraisal of the Upholding of Moral Good Actions by the Censor (44 BCE) in the Roman Empire and its Culmination in the Public Protector of South Africa

An Appraisal of the Upholding of Moral Good Actions by the Censor (44 BCE) in the Roman Empire and its Culmination in the Public Protector of South Africa

IN LIGHT OF ‘NKANDLA’, WHAT IS THE ROLE OF THE PUBLIC PROTECTOR IN UPHOLDING THE RULE OF LAW IN SOUTH AFRICA?

The focus of this article will be to ascertain what role, if any, the Public Protector plays in achieving and upholding the rule of law as envisaged in section 1(c) of the Constitution. In doing so, I will assess the powers of the Public Protector as envisaged by the Constitution and supporting legislation and analyse the effect of recommendations made by the Public Protector. I will then offer a discussion on certain shortfalls within the legislation that have become a hindrance to the Public Protector achieving her mandate in practice. I will, further, highlight the importance of the powers of the Public Protector as an avenue to achieving the rule of law, and, offer an analysis of the judgments in South African Broadcasting Commission v Democratic Alliance and Economic Freedom Fighters v Speaker of the National Assembly. I will, finally, conclude by discussing possible solutions to the challenges faced by the Public Protector in practice and offer a summary of my views.

A Critique of Social Media Sensationalism illustrated through controversial cases and the role of punitive populism and effect on the Judiciary in South Africa

Ponte Academic JournalDec 2016, Volume 72, Issue 12 A Critique of Social Media Sensationalism illustrated through controversial cases and the role of punitive populism and effect on the Judiciary in South AfricaAuthor(s): Rashri Baboolal-FrankJ. Ponte - Dec 2016 - Volume 72 - Issue 12 doi: 10.21506/j.ponte.2016.12.20 Abstract:In South Africa, there has been a media frenzy regarding court cases especially criminal judgments leading to the incarceration of criminals. The public reaction to the criminal judgments breathes positive and negative responses through social media. It is apparent that one case may bring public relief whereas other cases may frustrate the public. Court cases involving the infamous President Jacob Zuma, with a tainted history inter alia, rape charges to corruption to non-compliance with the public protector’s Nkandla report, which has certainly created public displeasure. The repugnant ongoing scent of corruption does not end with the President but is spread like a contagious disease throughout South Africa from white collar crime to blue collar crime. The Dewani case facts were perceived as an elaborate wedding between two opulent families to a murderous honeymoon in South Africa. South Africa became infamous as an ideal background to commit brutal crimes. It is apparent that South Africa is a world renown country that is dangerous in epic proportions, deterring foreigners as holiday makers and encouraging the brain drain of South Africans to immigrate to other promising first world countries with the promise of a better and safer future for the family. This paper will illustrate that the public openly critiques the justice system and exposes the corruption that has polluted the country and the role of punitive populism, which eases the frustration of the public in relation to a country ridiculed and plagued with crime. Download full text:Check if you have access through your login credentials or your institution Username Password

The coming crisis of Zuma's ANC: the party state confronts fiscal crisis

Rising state expenditure threatens to outstrip the South African government's ability to pay. This danger is merely a symptom of and challenge to the predatory characteristics of the ‘party-state’ erected by the ruling African National Congress (ANC), notably as they are exhibited under the presidency of Jacob Zuma. The ANC government is increasingly looking to an oil and gas bonanza to avoid a ‘fiscal cliff’, while Zuma himself is driving a nuclear power future which threatens to bankrupt the economy. The latter strategy conforms to the party's greater disposition to corruption and patronage. Key parastatals have become headed by Zuma cronies; family and friends have been awarded government favour; and Zuma's personal interests intrude upon the governance of parastatals, the South African Revenue Service and the functioning of constitutionally protected agencies such as the office of the Public Protector. The Zuma government's repudiation of accountability highlights an official drift to secrecy. However, the increasing limitations of ANC economic policy combine with growing discontent in society to place the party's political hegemony at risk – but Zuma's presidency has compromised the ANC's capacity for internal reform.

Constitutionalism, Parliamentary Condemnation and the South African Public Protector

VRÜ Verfassung und Recht in Übersee , Seite 402 - 410

Another Form of Group Areas Act in a Democratic South Africa – Complex Homeowners Dilemma

South Africa comes from a bitter period of apartheid where human rights of property ownership were violated through racially biased legislation called ‘The Group Areas Act’ of 1950 as amended. The act imposed control, based on race, property ownership and occupation in SA (Frog, 2002). The democratic government repealed the Act in 1994, but class discriminations continue. The promulgation of property rights in section 25 of the Constitution Act, of 1996, guaranteed human rights, but these rights are hard to enforce without monitoring structures. Municipalities are mandated to deliver essential services under the Public Protector’s watchful eye but are exonerated in Sectional Title Properties administered by bodies corporate and trustees (Bc&Tru). Managing sectional title properties presents multifaceted challenges, as competing interests of several stakeholders (i.e. Bc&Tru, owners and tenants, popular with the elderly and university students) must be reconciled (Whiteoak and Guilding,2009). This paper examines the homeowners’ dilemma, when moot bills and penalties result in water and electricity disconnections affecting dwellers lives. Potential abuse of power as well as conflict of interest by Bc&Tru is noted. The paper aims to highlight the need for an Ombudsman to regulate Bc&Tru to enforce accountability and protect rights as granted by the Constitution as the property rights of vulnerable people such as the elderly and tertiary students are violated. Qualitative method was used, through snowball sampling technique to access interviewees. Data also includes a summary of six complainants on “Hello Peter” an online service that refers allegations to perpetrators to defend their stance. Results: An unlegislated ‘Group Areas Act’ is back to haunt a democratic society, but this time based on class and wealth, not race. Sectional title homeowners loose their right to basis services and ultimately the value of thier homes. Water and electricity disconnection renders properties uninhabitable despite settlement of such services, a disguised dispossession. DOI: 10.5901/mjss.2014.v5n23p76

A PROPOSED MODEL FOR THE APPOINTMENT AND DISMISSAL OF THE NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE: A COMPARATIVE STUDY

When South Africa’s first democratically elected president was inaugurated on 10 May 1994, South Africans were anxious to see who would be leading the police service. Nelson Mandela followed his heart without bowing to political pressure and appointed seasoned police official Commissioner George Fivaz. Although the Interim Constitution Act 200 of 1993 was silent on the powers of the President to appoint the national commissioners, this appointment was made in terms of section 214(1) of that Act. At the time George Fivaz’s term expired, Mandela was also bowing out of the political limelight. When Thabo Mbeki assumed the presidency in 1999, he appointed Jackie Selebi, a former Umkhonto we Sizwe (MK) cadre, who came from the Department of Foreign Affairs without any policing experience. This appointment was made in terms of section 207 of the Constitution of the Republic of South Africa, read with section 7(1)(a) of the South African Police Service Act 68 of 1995. Section 8(1) of the South African Police Service Act stipulates that ‘if the National Commissioner has lost the confidence of the Cabinet, the President may establish a board of inquiry to inquire into the circumstances that led to the loss of confidence, compile a report and make recommendations.’ After serving his first term, reports of Selebi’s involvement in the criminal underworld began to emerge. As a result of these reports, the then Directorate of Special Operations (the Scorpions) investigated Selebi’s involvement in corrupt activities. In 2007, Selebi was charged inter alia with two counts of corruption; in 2010, he was found guilty of corruption and sentenced to 15 years’ imprisonment. Surprisingly, on 2 August 2009, President Jacob Zuma appointed General Bheki Cele, who also came from an MK background without any policing experience, as the third National Police Commissioner. Within a year, reports of Cele’s involvement in illegal lease deals began to emerge and the office of the Public Protector was called in to investigate the allegations. As a result of its findings of improper conduct and maladministration, he was suspended in 2011 and a commission of inquiry was established in terms of section 8(1) of the South African Police Service Act 68 of 1995 to find out whether the Commissioner was fit to hold office. General Cele was fired for maladministration and corruption and was replaced by General Riah Phiyega, who also did not have any policingexperience. A few months after her taking office, the Marikana incident occurred and all the blame for it has been directed at the National Commissioner, although the commission has not yet finalised its mandate. In view of the above-mentioned incidents, it is clear that there is a problem with the way in which the National Commissioner is appointed. This article seeks to unravel the powers of the president in appointing the National Police Commissioner and discuss the cases of the two former incumbents who bowed out of office in disgrace without completing their terms of office. It also includes a comparative study with countries such as Kenya, Northern Ireland, Uganda, Canada and selected countries from the Caribbean islands. As a way forward, a new model for appointing and dismissing the National Commissioner for South Africa is proposed.