Walter Bhengu

Is the public protector an ‘enforcer’ or a ‘recommender’?

The public protector has dominated the news yet again this year, and I’m sure this has been the year with the most coverage in the public protector’s history. One thing that has been outstanding is the debate around the powers of the office of the public protector. The public protector falls under chapter nine institutions, which are constitutionally created bodies that protect and promote constitutional democracy. These institutions go on to have legislation that expands on their constitutional mandate. In this case it is the Public Protector Act promulgated in 1994. The constitutional mandate of the public protector is to investigate, report and to take “appropriate remedial action”.

The main aspect focused on is “appropriate remedial action”. Some quarters of society have asked if this means the public protector:

* Can tell the government what to do.
* Would such an act be tantamount to equating the public protector to a de facto government?
* Is the public protector an “enforcer” or a “recommender”?

Interesting questions that should be dealt with by the Constitutional Court as this legal uncertainty, as considered by both sides of the debate, needs to be cleared up.

This then lands us to an interesting case when the office of the public protector and Mail & Guardian went to the Supreme Court of Appeal a few years back. The case was not about remedial action per se, but interesting lessons can be learnt from it. In this case the judge noted that the public protector has functions ordinarily associated with an ombudsman but the office’s functions go beyond the limited definition, especially because the public protector has a pro-active function in investigations as highlighted in the Act. This is an addition to a passive adjudicator role given to an ombudsman in other parts of the world.

The court also noted that it is for the public protector to decide what is appropriate to each case and not for the court to supplant that function. This means it would not be far-fetched to accept that the public protector can decide to take action or recommend, as both can be regarded as appropriate according to the office of the public protector and its mandate. It is however important to clear up if such power is unfettered in order to understand if the power means that the office can tell the executive what to do without consultation or a consensus.

The next point is that there is no dispute that an investigation and report of the public protector is subject to review by a court and can be set aside. But does such a review extend to including Parliament and the executive? Such that these two organs of state can review and subsequently set aside the public protector’s rulings? The public protector may report to Parliament annually or when the office deems it fit in accordance with the Act.

In the current Nkandla matter for instance, the public protector, Thuli Madonsela, has stated that Parliament can decide on the way forward for her recommendations, this after she faced massive resistance on the implementation of her rulings. If a court can order the executive and legislature to do something, does the public protector have a similar status? The public protector has in many instances been equated to a court due to the power to subpoena and make rulings among other aspects. But the likening is not explicitly mentioned in the Act.

The public protector was recently, at public discussion with the ombudsman of Sweden, quoted as saying that “should her office be seen as unable to ensure justice some may resort to extrajudicial means to exact accountability … since the court route is expensive”. Is she right in this sense? Does this uncertainty brew a constitutional crisis? It is a bit early to tell, but now is the right time for the Constitutional Court to be approached for clarity.

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