Constitutional Hill

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.

  • Kudzai Mataba u14136742

    As South Africa commemorates 20 years of democracy this year, it is in order to celebrate the strength of the constitution whose power in other seemingly democratic countries has begun to falter. The powers of the public protector ,as mentioned above are far reaching and the code of conduct set out for this office highly detailed but as the ancient Greek philosophers stated, “who is going to guard the guardian? “With such a question in mind one could easily loose faith in the powers of the constitution and begin to ponder as the writer of the above article did upon “whose got the power” but with the release of the report yesterday that found the president at fault, the public can be assured that the constitution is the ultimate protector of the people and it is to it that the public protector is accountable.It is commendable that under such immense political pressure Thuli Mandosela did not take the route that many South Africans thought she would by protecting the interests of the president and not of the public.

    In the midst of corruption and economic disgruntlement, there is once again, hope for democracy.

  • natala petrus 14196078

    When ANC came in authority in 1994,there was a light of hope that there won’t be any oppression of one person by another.It is the responsibility of the President to ensure that all necessary services are provided to citizens of the country and their tax money is not misused by any state organs,but with oru current cabinet is an opposite of what South Africans fought for.Instead the President is the one who is unjustly enriched from the tax of the mass.After Nkandla report by Thuli Madonsela it came to my attention that our goverment wants to manipulate our justice system to its favour.The aim of judicial authority is to protect community against such abuse of power.So let the court apply law without prejudice.Only constitution is supreme.I think it is the duty of South Africans to protect Thuli against attacks from ANC

  • Savannah Vosloo – 14032041

    After nothing was done about the Public Protectors request to fix the gap in the Executive Members Ethic code , it can potentially mean two things. One , that our Judicial system is ineffective. The courts are failing to execute their duties by not taking appropriate steps , after being asked by the Public Protector, to remedy the situation at hand. Another reason could be that the head of the National Executive, our president , thinks he is above the law by interfering with the functioning of the courts. This ultimately leads to situations where the President does not get prosecuted for unlawful conduct like he should be. While our President is suppose to set a “moral tone” for this country , it is clear that he is doing just the opposite .On a more positive note though, it is good to see that the Public Protector is complying with her duties and acts accordingly to the Publics interests.

  • 14171539

    The power that the Public Protector has is made clear to the
    public and those in positions of authority. The number one task of the Public
    Protector is to ensure that those who are in power and not misusing the power
    that are given. The fact that the President was previously found in breach of
    the Executive Ethics code and no provisions were made with regard to this shows
    that our legal system has many gaps that not being dealt with urgency. The question
    stands now that if the President is found guilty of using taxpayer’s money for
    his own personal use, who would The Public Protector report to and who would
    take up the matter? The President can certainly not make a ruling against
    himself. A solutions should have been
    made the first that President had been in conflict with the ethics code, by not
    taking the necessary remedial actions against the President it allows him to think
    the he is above the law and has the right to do what he pleases and that is
    unacceptable.

  • Michelle Doubell – 14040702

    The Public Protector clearly has one of the most important
    jobs, for it consists of the power to conduct investigations on alleged
    misconducts by anybody, whether in government or the public. This also reminds us that the parliament still has to “answer to somebody” and isn’t untouchable. The Public Protector’s rights are thus essential and all Reports need to be taken seriously, not only from the public but from government as well, and any interference in the investigation from the government or any other party should not be tolerated. South Africans also have the right to know the truth
    regarding any allegations made against the government. It is also vital that the Public Protector should very well be as it is – an independent party, otherwise any outcome in the Reports will skew in the favor of the government and unquestionably not be credible.

    South Africans need to be aware and rely on the importance
    of the Public Protector because South Africa desperately needs the Public Protector to protect the interests of the public from any wrong doings the parliament or any other governmental body may commit which will affect the people of South Africa. If there is no Public Protector to protect us, who else will? Hopefully the constitution will protect our Public Protector in her quest and thus protecting us, the public.

  • Thlologelo Mathebe 14184053

    The Public Protector’s report on Nkandla was anticipated by most if not all South Africans, many people were anxious to know the truth behind the president’s 246 million’s worth homestead. The reveal of the report was a welcomed effort by Thuli Madonsela as many people were put at ease, also reminding all South Africans that some independent institutions such as the Public Protector will go an far as they can go to prohibit unlawful use of the state’s money, most of which consists of tax money- that regular people pay.

  • Riani Deacon 04464649

    In the time that this article was written the Report was not made public yet. With the unknown of what is in the Report the public had reason to be sceptical about the credibility of this Report. Now with the Report that was made public we can be at ease that there are still positive elements in the government and someone is still protecting the public. Tuli Mdonsela did an excellent job in writing the Nkandla Report. This Report proved that the Public Protector is indeed a independent and impartial body.
    However there can still be concern about the Executive Members Ethic Act. In this act it is stated that the president can not act against himself. Hopefully the National Assembly will have the power to act against the president o the grounds of this Report. When this is not the case an excellent Report by the Public Reporter will be at waist.

  • 13229932

    The Public Prosecutor’s report is as impartial, unprejudiced and as veracious as the Section 182 of the constitution decrees it to be. However the onus of the rectification of the situation sorely relies on the amendment of section 3 of 82 of 1998 Executive Members’ Ethics Act. It is unpractical that after the public prosecutor investigates and recommends certain action to be implemented againast the executive, it again becomes the executives’ obligation to implement the correction upon themselves. Hence the request by the Public Prosecutor to ensure the amendment of the act is a matter that requires urgent attention otherwise the public prosecutors’ investigation are in vain.