Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
President Jacob Zuma says he disagrees with the Public Protector that findings of her office are by law not subject to any review or second-guessing by a Minister and/or Cabinet. He also challenges the view that only a court of law can review and set aside findings made and remedial actions taken by the Public Protector.
He states that the Public Protector’s role “is akin to that of an Ombud and quite distinct from that of a judge”. Her findings, argues the president, are useful tools to assist the government but they have no binding effect on the president. Because her findings do not emanate from an adversarial process, they cannot be binding. The president claims that he would be acting irrationally if he only considered responding to her findings in two ways: either to review her findings or to rubber-stamp them.
The Public Protector is a constitutional body exercising public power in terms of the Constitution and the Public Protector Act. She is empowered by section 182(1) to investigate alleged improper conduct in state affairs or the public administration and to make appropriate findings about the alleged improper conduct.
As the Supreme Court of Appeal (SCA) pointed out in 2011 in its judgment of The Public Protector v Mail & Guardian the Public Protector is not a mere Ombud, as the president alleged in his letter to her. This is because the Public Protector Act:
makes it clear that while the functions of the Public Protector include those that are ordinarily associated with an ombudsman they also go much beyond that. The Public Protector is not a passive adjudicator between citizens and the state, relying upon evidence that is placed before him or her before acting. His or her mandate is an investigatory one, requiring pro-action in appropriate circumstances.
The powers of the Public Protector are indeed wide-ranging; far exceeding those normally associated with an Ombud. As the SCA further pointed out, the Act confers “sweeping powers” on the Public Protector’s office to enable her to conduct her investigations. The Act empowers the Public Protector to:
call for explanations, on oath or otherwise, from any person, he or she may require any person to appear for examination, he or she may call for the production of documents by any person, and premises may be searched and material seized upon a warrant issued by a judicial officer… He or she is expected not to sit back and wait for proof where there are allegations of malfeasance but is enjoined to actively discover the truth.
Because the findings and remedial action taken by the Public Protector are made in terms of the Constitution and the relevant legislation, it cannot be correct to argue – as the president does – that the president, a Minister or the Cabinet can review or set aside her findings.
Just as the president or the Cabinet cannot set aside a decision of the CCMA, the Electoral Commission or the Pension Fund Adjudicator (or any other body authorised by law to investigate and make findings on matters in an independent and impartial manner) it cannot do so with findings of the Public Protector.
To hold otherwise would be completely to negate the independence of the Public Protector, which section 181(2) states is “subject only to the Constitution and the law”. It would also be in conflict with the duty imposed by section 181(3) of the Constitution on organs of state to “assist and protect” the Public Protector and to ensure its “independence, impartiality, dignity and effectiveness”.
Surely, were the very politicians implicated in wrongdoing by the Public Protector empowered to review and set aside her findings and remedial action, it would strike a fatal blow against the “effectiveness” of the institution of the Public Protector. To understand why this is so, consider an extreme example: imagine it was legally possible for a convicted murderer to review and set aside his or her conviction or the sentence imposed. That court of law’s effectiveness would be fatally undermined if this were to be allowed.
If the president or the Cabinet could review and set aside the decisions of the Public Protector, the legal powers bestowed on her office would thus become illusory.
The principle of nemo iudex in sua causa (no one may be a judge in his or her own cause) must surely also apply here. If the independence and impartiality of the Public Protector means anything, it must mean that her findings should not and may not be extinguished by the say-so of those against whom she has made findings of maladministration or misconduct.
I am therefore pretty sure only a court of law can review and set aside her findings and then only on the basis that she overstepped her powers, misconstrued the law or otherwise acted irrationally.
But if this is correct, does this mean that the president and his cabinet is bound by her decisions and that they are legally obliged to comply with the remedial action imposed by her office?
Our courts have not finally answered this question, but the wording of the relevant sections of the Constitution and the Public Protector Act suggest that her findings and remedial action may be binding. If this is correct, the Public Protector’s position would differ markedly from the position of most Ombudsman in other democracies – something the SCA has already confirmed.
The president is correct that the Public Protector is not a court of law. The argument could therefore be made that holding that the findings and remedial actions of the Public Protector are binding would be troubling as it would create confusion about the separation of powers between the judiciary and other constitutional bodies.
However, the Constitutional Court has said that South Africa has a unique system of separation of powers and that our understanding of it will develop over time. The starting point to understand our system will always remain the text of the Constitution. In this regard it may be significant that section 182(1)(c) of the Constitution states that the Public Protector has the power “to take remedial action” as regulated by national legislation.
This phrase suggests that the Public Protector does have the power to take binding steps to rectify wrongs committed by those in power, but that the power must be further elaborated upon in the Public Protector Act.
This seems to have been done in section 6(4)(b) of the Public Protector Act. This section provides some textual support for the argument that her findings and remedial action are indeed binding on the executive and on those directed to correct mistakes.
First, the heading of section 6 of the Act states that section 6 deals with the “additional powers of the Public Protector” and thus clearly deals with granting of powers to her as envisaged by the Constitution. Second, section 6(4) states that the Public Protector shall be competent:
to endeavour, in his or her sole discretion, to resolve any dispute or rectify any act or omission by (i) mediation, conciliation or negotiation; […] (iii) any other means that may be expedient in the circumstances.
This section is quite extraordinary in its scope. It empowers the Public Protector to take any steps she believes to be expedient in the circumstances to rectify the wrongdoing. “Any steps” must surely include ordering remedial steps. If the Public Protector is empowered to take any steps to rectify wrongdoing it must therefore include, say, ordering the president to repay a reasonable amount of the money with which he and his family were enriched by the renovations at Nkandla.
However, section 8 of the Act troubles the waters slightly as it states that the Public Protector may “in the manner he or she deems fit, make known to any person any finding, point of view or recommendation in respect of a matter investigated by him or her”.
Does this mean her factual findings are binding but that when she directs that remedial action be taken these are only recommendations?
A court of law will have to decide on this, but I suggest that there are two ways of reading the provisions of the Act.
First, it could be read as saying that the Public Protector’s findings and remedial action are that of an independent constitutional body that is subject only to review by the judiciary and is binding on the executive.
However, as the Public Protector is not a court of law, whenever a person directed by the Public Protector to take remedial action fails to do so, it would be necessary to approach a court of law for an order finding that the Public Protector’s directions were not complied with and asking the court to direct the president or other responsible person or body to implement the findings and remedial action imposed by the Public Protector.
Alternatively, the Constitution and the Act could be read as saying that while the Public Protector’s findings and remedial action are that of an independent constitutional body that is subject only to review by the judiciary, these findings and remedial action are not strictly binding (in the same way a court order is binding) on the president or other responsible persons or bodies who have been required to implement the findings and remedial action.
According to this second view, what would be required would be for the president or other responsible person to respond in a rational manner to the findings and remedial action imposed by the Public Protector in a manner that would assist and protect the Public Protector to ensure the independence, impartiality, dignity and effectiveness of her office as required by the Constitution.
Whether it could ever be rational to ignore the remedial action imposed by the Public Protector (given that such a move would almost certainly undermine the independence and effectiveness of the Public Protector) is a good question to ask.
What would certainly be true is that ignoring the remedial action required by the Public Protector or failing to consider all the relevant findings when formulating a response to a report of the Public Protector would not be rational.
If I am correct, no matter whether a court ultimately prefers the first or second view set out above, the president runs the risk of being told by a court of law that he has acted irrationally in responding to the Public Protector’s report and that his response was therefore unlawful and invalid.