The Public Protector’s Report: Who’s got the power and what is at stake

The Public Protector is about to release the long awaited Report investigating the alleged “security upgrades” at President Jacob Zuma’s private homestead near Nkandla as well as whether the President was truthful when he claimed to the National Assembly that he and his family had paid for all non-security related upgrades of his home. But what are the powers of the Public Protector and why was the institution created in the first place?

In law there is a long standing principle that no person can be a judge in his or her own cause (in Latin it sounds even sexier: nemo iudex in sua causa). Underlying this principle is the assumption that a person will not be able to make an impartial finding about a specific matter (or will not be perceived by others of being capable of making an impartial finding) if he or she has a direct interest in the outcome of that matter.

This means that when a large company is alleged to have acted improperly by, say, bribing a foreign government in order to receive a tender, an investigation by employees of the accused company will have little credibility. Neither will it be appropriate for a family member of Oscar Pistorius to sit as the trial judge in his murder case as an acquittal of the accused will carry little or no credibility due to the (real or perceived) lack of impartiality of the presiding judge. Only an impartial person or body with no direct interest in the outcome of the matter will be able to reach a credible finding on such matters.

Similarly, when allegations are made that the government misused funds to enrich the head of the government or that the head of the government mislead Parliament when he or she denied that he or she was personally enriched by the misuse of government funds, an investigation by members of the government will not be credible as those government Ministers or officials are in effect employees of the President and therefore will have a direct interest in the outcome of the investigation.

This is why a Report by the security cluster into the Nkandla “security upgrades” will – in legal terms – have far less credibility than any report prepared by an independent institution such as the Public Protector.

If there are any discrepancies between the government report and the report of the Public Protector, it would be difficult to argue that the former should be believed above the latter, given that individuals prepared the former with a direct interest in the outcome of their own investigation.

It is party because of such difficulties with the credibility of internal investigations that the South African Constitution created the office of the Public Protector. Because any investigation by state officials or government Ministers of maladministration or misuse of funds by fellow officials, Ministers or the President would be tainted because of the nemo iudex in sua causa principle, the Constitution created an independent and impartial body to do credible investigations into such matters and – if breaches were to be found – to make recommendations for remedial action to be taken.

Section 181 of the Constitution reminds us that – as is the case with other Chapter 9 institutions – the Public Protector is independent and impartial and must exercise her powers and perform their functions without fear, favour or prejudice.

Other organs of state have a duty to assist and protect the Public Protector to ensure the independence, impartiality, dignity and effectiveness of these institutions. This section of the Constitution also prohibits any person or organ of state from interfering with the functioning of the Public Protector.

Section 9 of the Public Protector Act underscores the impartiality of the Public Protector and indicates that her status is similar to that of a High Court judge.

In terms of this section it is a criminal offense to insult the Public Protector or the Deputy Public Protector. It is also a criminal offense for any person to do anything in connection with an investigation, which, “if the said investigation had been proceedings in a court of law, would have constituted contempt of court”.

Any person convicted of such an offence will be liable to a fine not exceeding R40 000 or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment.

These sections do not prohibit anyone from criticizing a specific finding of the Public Protector on sounds factual or legal grounds. Just as we may all criticize a court judgment on the grounds that we disagree with a judge’s interpretation of the facts or application of the legal principles, we are also entitled to criticize a Public Protector report on such grounds.

To use a purely imaginary example, challenging a finding of the Public Protector that a pool constructed at the President’s private home was indeed a swimming pool and not a fire fighting feature (on the basis that several buckets have been placed next to the pool to dip into the water in case of fire) would be perfectly legitimate.

But where an individual politician or member of the public wishes to discredit a report by the Public Protector he or she may not question the impartiality or integrity of the Public Protector and may not allege that the Public Protector made a finding animated by political considerations, corruption or malice as this would constitute a criminal offense in breach of section 9 of the Public Protector Act.

The powers of the Public Protector are far reaching. Section 182 of the Constitution empowers the Public Protector to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action.

The Public Protector Act elaborates on this and makes clear that the Public Protector has wide powers to investigate conduct by organs of state, politicians and other public bodies. She also has wide powers to obtain a warrant to search premises and to seize documents needed for an investigation.

Section 7 of the Act states that the Public Protector may investigate corruption, improper or unlawful enrichment, maladministration in connection with the affairs of government at any level; abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function; or improper or dishonest conduct.

In terms of the Executive Members’ Ethics Act of 1998 the Public Protector is also empowered to investigate breaches of the Executive Ethics Code passed in terms of the Act.

Section 2.3 of the Code of Ethics state that Members of the Executive (which includes the President and any other member of the cabinet) may not wilfully mislead the legislature to which they are accountable; act in a way that is inconsistent with their position; use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person; expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests; or receive remuneration for any work or service other than for the performance of their functions as members of the Executive.

Once the Public Protector has concluded an investigation she has to draft a report with her findings and any recommendations relating to those findings.

If the Public Protector is of the opinion that the facts disclose the commission of an offence by any person, she must bring the matter to the notice of the prosecuting authority.

She is also empowered to refer a report to the National Assembly if she deems it necessary; or she deems it in the public interest.

Of course, as far as possible breaches of the Executive Members Ethics Code by members of the Cabinet are concerned she is required to submit her report to the President for action.

As the Public Protector pointed out when she previously found President Zuma in breach of the Code, there is a lacuna in the Executive Members Ethics Act, as it does not provide for a situation where the President himself has been found in breach of the Code. Unfortunately this gap in the Act has not been corrected as requested by the Public Protector.

This means that in the event of the Public Protector finding that the President himself is in breach of the Code (and I am not making any assumptions in this regard), the Act requires him to received and act on the Report against himself. Given the absurdity of this situation I would assume that the Public Protector would be entitled in terms of the Public Protector Act to also submit this aspect of any report to the National Assembly for possible action against the President.

It is important to keep these general principles in mind when perusing the Public Protector’s report on the Nkandla security upgrade. Whatever the report may contain – and I have not seen the report and do not in any way wish to pre-empt any of its findings, those of us who comment on the report may do well to keep in mind that when we comment we are not allowed to insult the Public Protector or act in contempt of her office.

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