Position Paper THE EXTENT AND LIMIT OF THE POWERS OF THE PUBLIC PROTECTOR

Transcription

1 Position Paper THE EXTENT AND LIMIT OF THE POWERS OF THE PUBLIC PROTECTOR 2015

2 POSITION PAPER: THE EXTENT AND LIMIT OF THE POWERS OF THE PUBLIC PROTECTOR 2015 Contents 1. Introduction Purpose and powers of the Office of the Public Protector as a Chapter 9 institution Colloquium on the powers of the Office of the Public Protector Improving the efficiency of the Office of the Public Protector Conclusion... 7 Page 2

3 1. Introduction The Office of the Public Protector is one of six Chapter 9 institutions established by section 181(1) (a) of the Constitution of the Republic of South Africa, These institutions were brought into being to strengthen constitutional democracy, promote the rule of law and ensure proper separation of powers. In order to achieve the above, Chapter 9 institutions are independent and subject only to the law and the Constitution. 2 They must be able to operate impartially and perform their functions and duties without fear of undue interference. Organs of state are also expected to assist these institutions where appropriate and to do their part to protect their independence and effectiveness. 2. Purpose and powers of the Office of the Public Protector as a Chapter 9 institution The purpose of the Office of the Public Protector is to: (i) Investigate improper and prejudicial conduct in state affairs or public administration; (ii) Investigate maladministration and abuse of power in state affairs; (iii) Report on the findings of the investigations in (i) and (ii); (iv) Advise on appropriate remedies to the above. Section 182 of the Constitution furnishes the Office of the Public Protector with the powers of investigation and recommendations for remedial action. However, 1 Hereafter referred to as the Constitution. 2 s181 (2) of the Constitution. It must be noted that these institutions are required to submit an annual report to the National Assembly (s 181(5)). Page 3

4 sections 6 to 9 of the Public Protector Act (PP Act) 3 bestow further powers on the Office of the Public Protector relating to investigations, reporting on findings, publications of findings and powers to enter premises for purposes of investigations. It must be noted, however, that the Office of the Public Protector does not have the power to investigate court decisions. 3. Colloquium on the powers of the Office of the Public Protector The Law Society of South Africa resolved to host a colloquium to lead discussions on the following issues regarding the powers of the Office of the Public Protector, which have become the subject of national debate: (a) the extent and limit of the powers of the Office of the Public Protector; (b) to analyse these powers, bestowed in terms of relevant legislation, and how this affects other state organs, decisions regarding Public Protector reports, and the legal profession as a whole; and (c) to compile a final report to propose any actions arising out of the colloquium. The goal was to bring together five experts from diverse legal backgrounds, with different legal views to the above issues, to lead informed discussions on the issues above. The colloquium was attended by LSSA council members, practitioners and academics. The outcome of this discussion was consolidated into a draft report which was subsequently tabled at the relevant committees, and discussed with various key stakeholders. Drawing from the inputs and suggestions received, the final report on the outcome was drafted and it provided for the outcome below. 3 The Public Protector Act 23 of 1994 (hereafter referred to as PP Act ). Page 4

5 Overall outcome of the Colloquium (a) Findings of the Office of the Public Protector are issues of fact (i.e. whether or not there was maladministration). 4 (b) Findings of the Office of the Public Protector are not binding. The only exception to this rule is when a government institution rejects the findings on the basis of irrationality, or for an irrational reason. However, it is unclear at this stage how it will be determined if it was rejected on an irrational basis or not, and to whom it will fall to make this determination. 5 (c) Recommendations are steps suggested to remedy the maladministration and can never be binding. 6 (d) Therefore, those in power should treat finding of the Office of the Public Protector with the respect and care they deserve and avoid using technical defences to flout these findings. 7 (e) The Office of the Public Protector must ensure that good governance will be valued above all else. This instils trust amongst the general public that corruption and maladministration in state and public entities will be exposed and dealt with appropriately. The Office of the Public Protector is an institution that should broaden access to justice for the poor and marginalised. Therefore, recognising that the Office of the Public Protector cannot be granted all-encompassing powers, it must still be able to execute its duties in such a way as to ensure maximum effectiveness, and promote a culture of respect to its findings. (f) Only the Office of the Public Protector can determine what appropriate remedial action is in each case. 8 (g) The onus falls on the Office of the Public Protector to have the imagination and creativity to determine the action that will achieve the desired result, regardless of whether there is authority or not. 9 4 Prof Mtende Mhango. 5 Justice Zak Yacoob. 6 Prof Mtende Mhango. 7 Justice Zak Yacoob. 8 Justice Zak Yacoob. Page 5

6 (h) Therefore, it is important that the Office of the Public Protector does not get caught up in the debate regarding the binding nature of its findings, but to rather flesh out the appropriate remedial action and place its findings in the public domain. 10 However, the ultimate decision as to whether government has abided by the Constitution will still rest with the courts Improving the efficiency of the Office of the Public Protector Drawing on the outcomes above, it becomes necessary to consider the efficiency of the Office of the Public Protector and how it can be further improved to ensure proper execution of its functions as a Chapter 9 institution. The following are suggestions towards improving efficiency: (a) The Office of the Public Protector should be mindful to avoid the political arena. Findings should be reported and appropriate recommendations made, but then the Office should withdraw from the political debate that ensues. This is in line with the modus operandi of courts, where the court would hand down judgment and then withdraw from the possible public/political debate that might follow. (b) Explore means through which national respect for the Office of the Public Protector can be created. (c) Consultation between the Office of the Public Protector and the LSSA to explore possibilities where the legal profession can be of assistance in improving efficiency. 9 Justice Zak Yacoob. 10 Deputy Minister John Jeffrey, Justice Zak Yacoob. Also cf. Woolman Bishop Constitutional Law of South Africa (2012) Juta 2 nd ed. 24 A-3 where they state: One of the most common criticisms levelled against the Public Protector and Ombudsman generally is that the institution lacks the power to make binding decisions. In truth, however, the ability of the Public Protector to investigate and to report affectively without making binding decisions is the real measure of its strength. 11 Deputy Minister John Jeffrey. Page 6

7 (d) Create a proper forum, consisting of all key stakeholders, for constructive interaction regarding findings and the appropriate implementation of recommendations. 5. Conclusion The LSSA acknowledges that it is the role of the Office of the Public Protector, as a Chapter 9 institution, to strengthen constitutional democracy and promote a culture of accountability among state organs. It also recognises that the Office of the Public Protector must ensure efficient, cost-effective, transparent and accountable governance, 12 and is tasked with providing an easy, accessible, and cost-free mechanism for the public to report maladministration and abuse of power. 13 However, as a key stakeholder in the legal arena the LSSA also respects the importance of the judiciary, its independence in handing down judgment in cases of public interest, and its power to effectively set precedents on issues of law. In the light of the above, the official position of the LSSA is as follows: (a) The LSSA supports the assertion that there is a definitive distinction between findings and recommendations. (b) Findings of the Office of the Public Protector are not binding unless an organ of state rejects them on an irrational basis. 14 (c) Pending clarity on the interpretation of irrational basis, the LSSA will embrace the current precedent set by the court that at first instance the findings are not binding. Whether an organ of state acted irrationally is, at this stage, still a matter to be decided by the courts on a case-by-case basis Lawson Naidoo. 13 Lawson Naidoo. 14 Democratic Alliance v South African Broadcasting Corporation Limited and Others (2015) 1 SA 551 (WCC) at paras In must be note however that in Democratic Alliance v The South African Broadcasting Corporation Limited and Others (2015) Case No: 12497/2014 (WCC) the court held that a definitive judgment regarding the correct interpretation relating to the extent and powers of the Office of the Public Protector and the legal effect of the remedial action, is necessary for the effective functioning of our democracy (par 6). The court also granted leave to appeal to the SCA for latter interpretation and a definitive judgment. Page 7

8 (d) Respect for the Office of the Public Protector as a Chapter 9 institution must be created to support constitutional democracy. (e) Support the fact that the Office of the Public Protector s main weapon, at the moment, is its power to place findings and recommendations in the public domain and appeal to the moral conscience of state organs. Therefore, the LSSA resolves to: Do its part to urge state organs to respect their obligations in terms of the Constitution when dealing with findings and recommendations from the Office of the Public Protector. Engage in discussions to explore means through which national respect for the Office of the Public Protector can be created and promoted. Engage in a consultation with the Office of the Public Protector to explore possibilities where the legal profession can be of assistance in improving the efficiency of the Office. Assist in creating and promoting a proper forum, consisting of all key stakeholders, for constructive interaction regarding findings and the appropriate implementation of recommendations. Page 8