What the High Court really said about the powers of the Public Protector

The Western Cape High Court this week provided the first authoritative interpretation of the nature of the powers of the Public Protector. Although the Constitutional Court will ultimately have to decide whether to endorse the approach taken by the High Court, I believe the High Court judgment got it more or less right. Here is why.

Because of the highly charged nature of the standoff between the Public Protector and the President about the latter’s failure adequately to consider and implement the remedial action imposed by her office regarding the state-funded renovations of President Jacob Zuma’s private home near Nkandla, a court judgment clarifying the powers of the Public Protector was always going to elicit much partisan comment and “spin” from those with a vested interest in the matter.

Those truly interested in the legal consequences of the judgment would do well to ignore the spin from members of the governing party and from the opposition about what the judgment actually means. Instead, it may be helpful to analyse the judgment in detail to ascertain what the court actually found. As is often the case with complex legal matters, the devil is in the detail.

In Democratic Alliance v SABC and Others Schippers J in the Western Cape High Court confirmed that the Public Protector is not a court of law and that the findings of her office and the remedial actions imposed by that office are hence not directly binding and enforceable.

The court found that because the office of the Public Protector is modelled on the institution of the Ombudsman (which is widely found in European democracies), the power of the office lies in its ability to investigate and make findings in a cost-effective manner and to ensure a change of behaviour of government officials and members of the executive through reasoned engagement.

Where government officials and members of the executive are persuaded through such reasoned engagement to change their behaviour, it will change the way they think and behave and this will have a lasting beneficial effect on the standard of governance in a country. (The court is silent on what may happen if – for political or personal financial reasons – organs of state refuse to engage in a reasoned manner with the findings and remedial action imposed by the Public Protector.)

The High Court did not consider the fact that South Africa – unlike most European democracies with an Ombudsman – is a constitutional democracy in which the Constitution (and not Parliament) is supreme. It also did not engage in detail in the wording of section 182 or the Public Protector Act to augment its detailed reasons why it held that the Public Protector’s findings are not binding.

It is of course possible (but it is far from certain) that the Constitutional Court will agree with the Public Protector that her office differs from that of the Ombudsman in the European countries referred to. I suspect it is for this reason that the Public Protector has indicated that she would like to have the decision of the High Court reviewed.

But I am not convinced that such a review will be successful and that the Constitutional Court will ultimately agree with the Public Protector. The reason for this is that the High Court judgment does provide for the effective implementation of the findings and remedial action imposed by the Public Protector, without giving her office the status of a court of law – which would be constitutionally problematic.

I say this because after finding that the remedial action imposed by the Public Protector does not have the status of a court order, the High Court proceeded to warn that:

the fact that the findings of and remedial action taken by the Public Protector are not binding does not mean that these findings and remedial action are mere recommendations, which an organ of state may accept or reject.

Consequently the findings of the Public Protector can never be ignored. Where an organ of state ignores the findings and remedial action by the Public Protector it would fail to comply with the constitutional duty to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness.

Disregarding the findings and remedial action subverts the Public Protectors powers under s 182 of the Constitution.

It would not always be sufficient, stated the court, to rely on Parliament and its committees to ensure that the findings and remedial action of the Public Protector are not ignored and that they are implemented. Because Parliament is a political body, it does not provide an effective legal remedy to ensure that the findings and remedial action of the Public Protector are properly dealt with.

Ultimately, the Public Protector or one of the complainants in a case may approach a court to ensure that the findings and remedial action are not ignored and, in appropriate cases, a court may order the relevant organ of state to implement the findings and the remedial action imposed by the Public Protector.

This is exactly what the High Court did in the case under discussion, ordering the SABC to institute disciplinary proceedings against the newly appointed COO of the SABC, Mr Hlaudi Motsoeneng, as was directed by the Public Protector, and further ordering his suspension while the disciplinary process takes its course.

To ensure that the office of the Public Protector “is not undermined”, the organ of state against whom findings are made or who is directed to take remedial action, must carefully consider the findings and remedial action imposed by the Public Protector.

If the organ of state decides to reject any of the findings and remedial action of the Public Protector, this will only be legally valid if the organ of state can produce “cogent reasons” for doing so. If it fails to provide such cogent reasons, its refusal to implement remedial action would be irrational and unconstitutional.

Here is the crux of the matter: the organ of state would not be acting rationally if it rejected the findings and the remedial action imposed by the Public Protector merely because it prefers its own view of the relevant facts or the remedial action above those findings and remedial action imposed by the Public Protector.

Even when the organ of state reached its own view (that differs from that of the Public Protector) on rational grounds, this would not make the rejection rational and lawful. This is so because if an organ of state could refuse to accept and implement the findings and remedial action of the Public Protector merely because it happened to hold a different view of the matter, it would subvert the powers of the Public Protector and would fail to act in a manner that ensured the effectiveness of that office.

What the organ of state would have to show is that (irrespective of whether it agreed with the findings and remedial action or not) there were other “cogent reasons” for rejecting the findings of the Public Protector, given the constitutional duty on the organ of state to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness.

The facts of the case under discussion illustrate this point and explain the “bite” hidden in the judgment regarding the obligations of those directed to take remedial action by the Public Protector. The Minister argued in her papers before the court that after the Public Protector made a finding that Mr Motsoeneng lied about his qualifications, the Minister looked at the evidence on which the Public Protector based her finding and came to a different conclusion.

Not only did the Minister not provide any reasons for coming to this decision, she also did not state that she had consider the other findings made against Mr Motsoeneng by the Public Protector. Neither did the SABC Board. The Minister and the Board in effect preferred their own view on Mr Motsoeneng above that of the view expressed by the Public Protector and did not bother to provide detailed reasons to show why this would be rational.

In the light of this failure to provide any reasons, let alone cogent reasons, for rejecting the findings and remedial actions imposed by the Public Protector regarding Mr Motsoeneng, the court found that the Minister’s and the SABC Board’s actions were “arbitrary and irrational and, consequently, constitutionally unlawful”.

The judgment mean that neither the President (nor Parliament) would be acting rationally if it decided that it preferred its own view of the facts and the appropriate remedial action regarding the Nkandla scandal above those imposed by the Public Protector and then rejected her findings and remedial action. Merely referring to the findings of the Ministerial Task Team would also not suffice.

This does not mean (in terms of the High Court judgment) the President could under no circumstances reject some of the findings and remedial action imposed by the Public Protector regarding the Nkandla matter. For example, where it would be impossible to implement the remedial action, it would be entirely rational for the President to refuse to implement the remedial action imposed by the Public Protector.

But given the fact that the President has a constitutional duty to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness, it would not be sufficient for the President to say he had a different view from the Public Protector regarding her findings and remedial action about the Nkandla matter. If the President ignores some or all of the findings and remedial action by the Public Protector and does not provide cogent legal reasons for this (apart from having formed a different view about the matter), he would be acting irrationally and would be in breach of the Constitution.

I would think that it is therefore in the interest of President Zuma to respond in more detail to the findings and remedial action imposed by the Public Protector, to indicate whether he accepts or rejects each and every one of the findings and remedial action and, if he rejects a finding or a remedial action, to provide cogent legal reasons for doing so. If he fails to do so he would be in breach of his constitutional obligations – at least as understood by the judgment discussed here.

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