A view from the bar
By Anton Katz
Many regard Thuli Madonsela as a saviour of South Africa’s democracy, and her successor, Busiswe Makwebane as having been captured by the Zuma Presidency. In order properly to appreciate these views, an understanding of why the office of the Public Protector was established, and its role is necessary.
In South Africa, public administrators and State institutions exist to protect the public. In particular, they ensure that the public is properly served and rights advanced and protected. The administration only exists for that purpose. It collects money (taxes) from citizens and uses it for the whole society. We all benefit when our public officials (civil servants) do their job properly.
But what happens when ‘our’ public servants go rotten and become errant. Who protects the public from those whose very existence is to protect the public? In Latin this is captured by the maxim: ‘Sed quis custodiet ipsos sustodes?’ — ‘But who will guard the guards themselves.’
The Constitution makers, recognising this potential problem, created six institutions supporting constitutional democracy. One of the six is the Public Protector (PP).
The Constitution says the Public Protector must be independent and impartial and perform his or her functions without fear, favour or prejudice. Other organs of state have an obligation to assist and protect the Public Protector to ensure his or her independence, impartiality, dignity and effectiveness. It is crime to interfere with the functioning of the Public Protector. Also, the PP is accountable to the National Assembly, must report to them on her activities, and performance of her functions at least once a year.
The role and qualifications of the PP
The PP has three powers: 1. to investigate any conduct in state affairs or in the public administration that is alleged or suspected to be improper; 2. to report on that conduct; and 3. to take remedial action.
The Public Protector must be a South African citizen, who is a fit and proper person to hold such office. In particular, she must be a judge of the High Court, or an admitted advocate or attorney who has practiced law or lectured in law for accumulative period of 10 years, or been a member of parliament or has specialised knowledge of or experience in the administration of justice, public administration or public finance. She shall not perform remunerative work outside her official duties.
The powers of the PP
The powers of the PP are strong and wide ranging as far as the public administration is concerned, and extend to the affairs of any institution in which the State is the majority or controlling shareholder of any public entity. There is no power at all in relation to private, as opposed to public entities.
The PP’s powers allow her to investigate, on her own initiative or on receipt of a complaint, any alleged (i) maladministration in connection with the affairs of government at any level; (ii) abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function; (iii) improper or dishonest act, or omission or offences contained in the Prevention and Combating of Corrupt Activities Act, 2004, with respect to public money; (iv) improper or unlawful enrichment, or receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission in the public administration or in connection with the affairs of government at any level or of a person performing a public function; or (v) act or omission by a person in the employ of government at any level, or a person performing a public function, which results in unlawful or improper prejudice to any other person.
Relationship to the President
The President appoints the Public Protector for a non-renewable period of seven years. The PP may be removed from office by the President only on grounds of misconduct, incapacity or incompetence after two thirds of the National Assembly adopt a resolution calling for the person’s removal.
Thuli Madonsela (appointed by Jacob Zuma in October 2009) was the third Public Protector. Her predecessors were Selby Baqwa (appointed by Nelson Mandela in 1995), and Lawrence Mushwana (appointed by Thabo Mbeki in October 2002).
Significant cases for the previous PP
During Adv Madonsela’s term of office a key and contentious issue arose in two significant cases. Adv Madonsela investigated and reported the use, or rather abuse of public money and maladministration at the SABC by the COO, Hlaudi Motsoeneng, and the unlawful abuse by Jacob Zuma in the building/renovation of his private home in Nkandla. She found unlawful conduct existed, but went further and took remedial action to remedy the situation. She ordered the SABC and Jacob Zuma to remedy the abusive and unlawful conduct she had identified in specified ways.
They ignored her remedial action/order. When the Democratic Alliance (DA) and the Economic Freedom Front (EEF) approached the courts to compel the SABC and Jacob Zuma to comply they argued that her remedial action was only a recommendation and not binding. So their argument went, they could comply if they wanted to, but they were not under any obligation. The Constitutional Court and the Supreme Court of Appeal rejected their defence. The Chief Justice commented: ‘It is not open to any of us to pick and choose which of the otherwise effectual consequences of the exercise of constitutional or statutory power will be disregarded and which given heed to. Our foundational value of the rule of law demands of us, as a law-abiding people, to obey decisions made by those clothed with the legal authority to make them or else approach courts of law to set them aside, so we may validly escape their binding force.’
If the SABC or Jacob Zuma were of the view that the PP had acted irrationally or unlawfully it was open to them to approach a court of law to review and set aside the remedial action taken by the Public Protector. But what they could not do was fail to comply because of their view that she had acted unlawfully.
Going forward in SA
The bottom line is: no person is above the law, and that includes the President. He has a duty to comply with the law. If he does not the courts will find that he has violated the Constitution, as the Constitutional Court did in the Nkandla case. The Public Protector is also subject to the law; an irrational or unlawful decision by the Public Protector will also be invalidated by the Courts. Who guards the guardians? The answer can only be the Courts.
Anton Katz SC is a practicing advocate at the Cape Bar and has been a member of the United Nations Human Rights Council Working Group on Mercenaries since 2011.