THE OFFICE OF PUBLIC PROTECTOR IN SOUTH AFRICA
HISTORY
The office of the Ombudsman in South Africa was first established in 1979 and was called the Advocate-General.
In 1983 the Advocate-General changed its name to Ombudsman.
The purpose of this office was to ensure and maintain efficient and proper public administration.
Why form the office of Advocate General?
The need for this office was apparent after the facts about the Information Scandal had come to light.
Though the information candle started as early as 1970, the rumors and speculation concerning financial malpractice in the Department of Information became so serious July 1977 that an audit of the department’s books was ordered.
As a result of the information scandal, the then Prime Minister asked the parliament to institute a Commission of an Inquiry to identify the alleged irregularities committed within the Department of Information.
The South African Parliament realized that, after the Commission had published its final report, there would always be a need to investigate matters of a similar nature.
The thinking was that there were no guarantees that another scandal will not take place in the future.
The Erasmus Commission
Information Scandal resulted in the establishment of the Erasmus Commission in 1978.
Under the leadership of Judge R P Botha Erasmus, Erasmus Commission was given a broad mandate but a short period of time to conduct the investigation on the “Information Scandal”
After the results of the Commission were published, the South African Parliament recommended that a permanent structure should be established to serve as a guardian of “honest public administration and orderly government”
Then the idea of establishing an Advocate General as a replacement of the Erasmus Commission was announced in September 1978.
The Advocate General and the office of the Ombudsman
The office of the Advocate General was established as an attempt by the Apartheid government to establish an institution to deal with the abuse of office by public officials.
It was established in terms of section 4 (1) of the Advocate General Act 118 of 1979.
Due to the agency involved in forming this office, the government realized that a mistake was made in the mandate by including Black people.
In 1983, a new Constitution Act 83 of 1983 was promulgated.
After the promulgation of the Act, the government decided to exclude Blacks from the services of the Advocate General.
The office of the Advocate General was then replaced by the Ombudsman when the Ombudsman Act 110 of 1983 was promulgated in 1983.
THE OFFICE OF THE PUBLIC PROTECTOR
In 1995 the office of the Public Protector replaced the Ombudsman.
The King Report of 1992 which was adopted in 1994 formed an integral part in formation of the Public Protector in 1995.
The King Committee on Corporate Governance was formed in 1992, under the auspices of the Institute of Directors, to consider corporate governance, of increasing interest around the world, in the context of South Africa
King Report was used by National Party whilst negotiating for a democratic South Africa with the African National Congress in 1992.
The purpose of the King Report was to promote the highest standards of corporate governance and ethics in South Africa.
RECOMMENDATIONS MADE BY KING REPORT
the King Report recommended seven characteristics of good corporate governance:
i. Discipline
ii. Transparency and openness
iii. Independence
iv. Accountability
v. Responsibility
vi. Fairness
vii. Social responsibility
Why the office of the Public Protector was established
Any government institution is established for a reason; the South African Public Protector was established due to the following reasons:
a. Discrimination
b. Geographical location
c. Ignorance of basic Human Rights
d. Abuse of power
e. Constitutional democracy
ESTABLISHMENT OF PUBLIC PROTECTOR IN SOUTH AFRICA
Its establishes under section 181 (1) (a) of the South African constitution as a state institution to strengthen constitutional democracy in the Republic.
During the multi-party negotiations that preceded the 1994 elections it was agreed that South Africa should have a public protector.
It was established by means of the provisions of the interim constitution of 1993 and confirmed as an institutional democracy by the final constitution in 1996.
The office of public protector came into being on 1st October 1995.
It had jurisdiction over all organs of state, any institution in which the state is the majority or controlling shareholder and any public entity as defined in s, 1 of the public finance management.
ESTABLISHMENT AND APPOINTMENT
Section 1 of the public protector act provides for the establishment of an office of the public protector as well as a layout of the required qualifications to be a candidate for this position.
1A, (1) there shall be a Public Protector for the Republic.
(2) The President shall, whenever it becomes necessary, appoint a Public
Protector in accordance with the provisions of section 193 of the Constitution.
(3) The Public Protector shall be a South African citizen who is a fit and
Proper person to hold such office, and who-
(a) Is a Judge of a High Court; or
(b) Is qualified to be admitted as an advocate or an attorney and has, for a
Cumulative period of at least 10 years after having been so [qualified] admitted, practiced as an advocate or an attorney
(ii) Lectured in law at a university
(c) Is qualified to be admitted as an advocate or an attorney and has, for a
Cumulative period of at least 10 years after
Having so qualified, lectured
In law at a university; or
(d) Has specialized knowledge of or experience, for a cumulative period
Of at least 10 years, in the administration of justice, public
It is also important to note that
(4) The Public Protector shall not perform remunerative work outside his
Or her official duties.”
Sec 2A goes on to give the national assembly the mandate to nominate a potential public protector however this can only be done so through the recommendations of a committee set up by the national assembly.
"(1) The National Assembly shall [, in accordance with the rules and orders of the National Assembly, appoint a committee for the purpose of
(a) Nomination of a person in terms of section 193(5) (a) of the Constitution
To be appointed as Public Protector;
(b) Nomination of a person in terms of section 2A (3) (a) to be appointed as
Deputy Public Protector;
(c) Consideration in terms of section 194(1) (b) and (3) (a) of the Constitution
Of the removal from office of the Public Protector;
(D) Consideration in terms of section 2A (9) (b) and (11) (a) (ii) of the removal
From office of the Deputy Public Protector.
Section 2(3) (A) provides that the national assembly or if parliament is not In session, the committee may allow the public protector to vacate his office
A) On account of continued ill health
B) At his or her request provided that such request is addressed to parliament three months before the date of resignation.
The public protector will be required to leave his office only on grounds of gross misconduct, a finding to this effect by the committee or adoption of a resolution by the national assembly calling for his or her resignation.
Generally section 2 of the amended public prosecutor act provides that the job requirements for both the public protector and his deputy are the same
Sub sec (6) of this provide that his duties n responsibilities will be delegated from the public protector
The grounds for his dismissal are set out in subsections 9 and 10
(9) The Deputy Public Protector may be removed from office only on-
(a) The ground of misconduct, incapacity or incompetence;
(b) A finding to that effect by the committee; and
(c) The adoption by the National Assembly of a resolution calling for his or
Her removal from office.
(10) A resolution of the National Assembly concerning the removal from
Office of the Deputy Public Protector must be adopted with a supporting
Vote of a majority of the members of the National Assembly.
(11) (A) The President may suspend the Deputy Public Protector from
Office at any time after any complaint relating to the grounds referred to in
Subsection (9) against him or her has been received by the National
Assembly, if the President deems the complaint against the Deputy Public
Protector to be of such a serious nature as to make it inappropriate for him
Or her to perform his or her functions while the complaint is being
Investigated.
Financing, remuneration
Section 2 (2) prescribes that the remuneration for both the public protector and his deputy shall from time to time be determined by the national assembly but only upon the directions of the committee. It states however that the public protector shall
a) Not be paid less that a high court judge and
b) Such remuneration shall not be reduced neither shall the terms and conditions of his employment be adversely altered during his or her term in the office
Staff of the public protector
Section 3(1) provides that the public protector, subject to his own control and direction may be assisted by
a) The deputy public protector
b) Chief administrative officer (financial, administrative and clerical functions
c) Such staff that is necessary to aid the public protector in the performance of his duties.
Sec 5(3) provides that neither the office of the public protector nor his staff shall be liable in respect of any findings reflected In any report, point of view or recommendation expressed in good faith and made known to parliament.
Publication of Findings
Sec 8 provides that the public protector may make known to any person the findings of their investigation on a manner which he/she deems fit.
At least every year the office of the public protector is required to write to the national assembly on the activities of this office
Any report published by the public protector is available to the public except where it may endanger the safety of citizens, prejudice any other ongoing or pending investigation, disturb or undermine public peace and order
FUNCTIONS OF THE PUBLIC PROTECTOR
Article 182 of the Constitution of South Africa.
182 Functions of Public Protector
1) The Public Protector has the power, as regulated by national legislation-
(a) 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;
(b) To report on that conduct; and
(c) To take appropriate remedial action.
PUBLIC PROTECTOR ACT.
The Act of parliament established in regards to Article 182(2) is the Public Protector Act.
The additional powers allocated to the Public protector under this Act are under Section 6 paragraph 4.
(4) The Public Protector shall, be competent-
(a) To investigate, on his or 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 of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004.
(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;
ELECTORAL COMMISSION ACT.
Under the Electoral commission Act Section 6(3) (d), the public protector shall sit in a panel to nominate candidates for the Electoral commission for approval by Parliament.
(3) The panel shall, subject to subsection (6), consist of-
(d) The Public Protector established by section 110 (1) of the said Constitution
NATIONAL ARCHIVES AND RECORD SERVICE ACT.
Under the National archives and record service Act, the council established under this Act may consult with the public protector on matters on investigation of unauthorized destruction of records protected under the Act.
(4) The functions of the Council shall be to-
(e) Consult with the Public Protector on investigations into the unauthorized
Destruction of records otherwise protected under this Act;
HOUSING PROTECTION MEASURES ACT.
Under the Housing protection measures, the public protector may be referred to by a housing consumer or home builder in regard to review of terms of the decision of the respective council with consistency to the Public protector Act.
22 (4) after exercising his or her rights in terms of subsection (3), a housing consumer or a home
Builder may refer-
(I) any decision or action of the Council, its staff or its agents to the Public Protector for review in terms of the Public Protector Act, 1994.
M&G V PP (2011)
Unlike the traditional ombudsman, the public protector has expanded powers to initiate investigation on their own accord and act as a proactive instrument of justice
It was held 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. Although the Public protector may act upon complaints that are made, he or she may also take the initiative to commence an enquiry.”
SUCCESSES OF THE OFFICE OF THE PUBLIC PROTECTOR.
ANNUAL REPORT 1ST APRIL 2010- 31ST MARCH 2011.
Performance of duty.
The Public Protector promoted and strengthened constitutional democracy through fostering good governance by investigating complaints that ranged from allegations of poor service delivery to unethical conduct, corruption and other forms of maladministration.
Public awareness.
The public protector has put considerable effort in ensuring that the office receives maximum public awareness on its existence and mandate it owes the public in respect to the rule of law and democracy. This has been done through the “Public Protector Good Governance Week” which was launched in October 2010. It is intended to take place annually. During the Week, they pull out all stops in a bid to ensure that every person in the country is made aware of the existence of this office, its role and how it can serve them.
Reporting complaints.
The office received a higher number of complains compared to the previous financial years, indicating that there has been public awareness. Out of the total received complains, less than 50% of complaints were referred to different mechanisms of enforcement. This shows that the public understands the mandate of the office of the public protector regarding the kinds of complaints it can receive better than it did the previous financial year.
Finalization of cases.
While more than 14 000 matters were finalized only 41 of them resulted in reports. The rest of the cases were settled as usual through appropriate or proportionate dispute resolution mechanisms such as negotiation, conciliation, mediation and a combination. In such instances remedial action is immediately implemented because agreements are reached during such engagements.
Remedial actions.
The reports of the rest of the cases included appropriate remedial actions to be undertaken by the institution under investigation.
The general trend is that remedial action is implemented.
The Public Protector may, if remedial action is not implemented or the terms of an agreement to resolve the matter are not adhered to:
a)take the matter up with relevant competent authorities.
b) Refer the matter to the national assembly or provisional legislature for assistance.
c) Support a complainant who takes the matter to court by way of an amicus curiae brief.
In the few instances where it is not implemented, engagement with the competent authorities has yielded positive results.
The impact of finalized cases continues to change the livelihoods of communities for the better in the same way it helps the state to address its administrative deficiencies with a view to avoiding a recurrence.
In the case of where a municipal truck driven by an official in the Western Cape ploughed into a complainant’s wall. The municipality refused to pay damages, arguing that the complainant needed to sue the official as he did not have authority to drive the vehicle at the time of the accident. The Public Protector brought the two parties together to resolve the matter and the municipality subsequently agreed to pay the complaint an amount of R37 000.
Another the case of a woman whose application for a child grant was dismissed by South African Social Security Agency (SASSA) officials, arguing that her name already existed in the system. Upon investigation, the office of the public protector learned that another woman was receiving the money at a local supermarket. When confronted, the suspect alleged that she had been sold an identity document book by an official at the Department of Home Affairs. She also allegedly paid for a clinic card and bribed a SASSA official to process her fraudulent application for the grant. A criminal case has since been opened.
Other achievements.
Key milestones included bilateral agreements with Ombudsman institutions in the United Kingdom (UK), the Hashemite Kingdom of Jordan and Kenya. Bilateral assistance was provided to Bermuda. The Public Protector also serves as the executive secretary of the African ombudsman and mediator’s association (AOMA).
She has been entrusted with establishing and overseeing the running of the African Ombudsman Research Centre at the University of KwaZulu-Natal.
The centre was successfully launched with government support, particularly in the form of finance from the Department of International Relations and Cooperation (DIRCO), on 15 March 2011.
CHALLENGES
High vacancy rates with key posts remaining unfilled for long periods.
The time taken to act on complaints appears to depend on the particulars of the case.
Perceptions of favoritism i.e. Oil gate Scandal
The extent to which govt. complies with the findings of the public protector is a moot point. though there is high level of compliance in comparison to Kenya.
Capacity to access classified information
Presence of interference from holders of government offices
Much of the public has not heard of the office of the public protector despite its numerous offices and public outreach programmers.
Resources allocated to the office remain disproportionate to the mandate and strategic objectives of the office.
PROSPECTS
Greater cooperation between the Public Protector and the Judiciary to enable them to achieve their respective mandates.
Making civil processes effective and accountable
Encouraging public institutions to adhere to the law
Serve as facilitators and guardians of good governance
LESSONS LEARNED FROM THE OFFICE OF PUBLIC PROTECTOR S.A
Mode of establishment of office
Scope of jurisdiction
Relation with political culture of the country
Use of public outreach programmers to inform more people on the office of public protector.
Complexity of investigations undertaken.
Legal background in support of the office.
OIL GATE SCANDAL
Appeal case brought to the Supreme Court of Appeal of South Africa by the Public Protector against Mail and Guardian Ltd.
The incumbent of the office at the time of the proceedings was the current holder of office Ms Thuli Mondsela, however the investigation in question was done by the previous P.P Lawrence Mushwana
Facts of case
M & G wrote an article referred to as ‘Oil Gate’ (summary to be sent on word). On receipt of complaints the Public Protector conducted investigations and made report. The report found most areas of case outside jurisdiction of the office and the reminder stated no impropriety with the concerned entities.
M & G asked for order of certiorari on report which the trial court granted on grounds of inadequacy.
P.P Appealed
Legal Issue
The key legal issue was whether the public protector undertook proper concise investigations. N/B court stated that its objective was not to find truth or falsity in the matters being investigated but to scrutinize the in investigation process!!
Key Points in Judgement
Court based analysis of investigation on standard of a reasonably enquiring mind; whereby such an individual would put forward certain questions e.g. why the need for the advance?, reason for payments to Uluntu investments
Court stated that the public protector must inspire confidence that truth has been discovered and not just discover it. Investigation must be seen to have been done.
3. On matters not investigated; P.P is constitutionally empowered under s 182 as well as the Public Protector Act s 6 (5) which allow investigations even on entities seemingly private
4. On matters investigated; P.P had power to acquire more information to provide a comprehensive as mandated by the Public Protector Act however chose not to perform function
Conclusion
Public protector did not carry out investigations that a reasonably enquiring mind would have. Public protectors discrediting of the journalist instead of allowing the material to determine the veracity of the speaker.
Court maintains order of certiorari but makes note that it cannot dictate the manner in which the Public Protector carries out investigations.
THE NKANDLA REPORT
The Nkandla project is a set of upgrades and improvements made upon President Jacob Zuma’s private residence at Nkandla in the KwaZulu-Natal Province. The project was initially planned to constitute a security upgrade on the premises but resulted in other developments being made reaching a sum of R 215m by the time of the compilation of the report.
The earliest report on the Nkandla project was done by M & G in December 2009, however first official report to the Public Protector was made on 13th December 2011 following the 2nd M & G article on the same dated 11th November 2011.
The investigation spans from 19th May 2009 to January 2014.
Laws informing Investigation
The Constitution;
The Public Protector Act 23 of 1994;
The Executive Members’ Ethics Act 82 of 1998;
The Executive Ethics Code of 2000;
The Public Finance Management Act 1 of 1999 (PFMA);
Government Immovable Asset Management Act 19 of 2007 (GIAMA)
The Protection of Information Act 84 of 1982;
The National Key Points Act 102 of 1980 (National Key Points Act);
The Remuneration of Public Office Bearers Act 20 of 1998;
The Kwazulu-Natal Ingonyama Trust Act 3 of 1994;
The Treasury Regulations and Guidelines and directives issued by the National Treasury;
The Ministerial Handbook approved by the Cabinet on 7 February 2007;
The Cabinet Policy: Security Measures at the Private Residences of the
President, Deputy President and former Presidents and Deputy Presidents, approved on 20 August 2003;
The South African Defence Review of 1998 (the Defence Review);
The Minimum Information Security Standards (the MISS);
The Minimum Physical Security Standards; and
The Supply Chain Management Policy of the DPW adopted on 29 April 2008
Methodology of Investigation
In the Public Protector’s report, the following were listed as the manner in which investigation was done
Correspondence
Interviews
Analysis of Documents
Inspection of location
Submissions by parties implicated
Limitations on Investigation
1. Scarcity of resources; in terms of capacity and financial
2. Access to classified information; on grounds of national security
3. General delays in obtaining information held by some departments involved in project
4. Requests for extension to submit responses to notices
5. Requests for extension to submit responses for notices ( s 7 (9) P.P Act
6. Litigation and threatened litigation
Remedial Action
As per section 182 (1) Public Protector ordered, among others;
The President is to; assist treasury in determining the cost of the expenses not related to security and pay a reasonable percentage. He is also to reprimand ministers involved the project who engaged in abuse of power and make a report to the National Assembly within 14 days.
The Secretary to the Cabinet to take urgent steps to: Update the Cabinet Policy of 2003 to provide for a more detailed regime
The National Commissioner of the SAPS to: Identify officials that were and may still be involved in the Nkandla Project and implement measures to identify why prescripts were not complied with and on the basis thereof decide if disciplinary action should be taken.
On top of the remedial action, the Public Protector also ordered measures to ensure implementation including;
When the President submits this report and his intentions regarding the remedial action and, within 14 days of its receipt, the Director General in the Presidency should notify my office and Cabinet.
Also; Accounting Officers of all organs of state required to take remedial action, are
To provide implementation plans to my office not later than 01 May 2014.
Case law Analysis
Comparison of the two cases provides a clear picture of how the office of the Public Protector has grown in terms of the manner in which investigations are done i.e. comprehensiveness of investigations, application of mandate as well as proper utilization of the powers granted to the office by the constitution
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