THE OFFICE OF THE PUBLIC PROTECTOR:
AN INHERENT UNSOLVABLE DILEMMA?
MXOLISI NGULUBE
Second year LLB Student, School of Law, University of
the Witwatersrand
Central to our constitutional democracy are
institutions entrusted with not only safeguarding, but
also enforcing the values and principles expressed in the
Constitution, such as the principle of checks and
balances.1 Chapter 9 institutions such as that of the
Public Protector were established for the abovementioned purpose. This essay will give a critical
analysis of the institution of the Public Protector’s
powers, duties and relationship with other constitutional
structures, paying special attention to the ‘accountability
dilemma’ faced by all these institutions.
The drafters of the Constitution saw it fit to establish
state institutions which would support our constitutional
democracy.2 Section 181 of the Constitution3 established
six bodies entrusted with such a duty and these
institutions adopted the term ‘Chapter 9 institutions’ as
they are established under that chapter. All six
1
Ex Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,
1996 (First Certification Judgment) 1996 (10) BCLR 1253 (CC) paras
161-165.
2
Ibid.
3
Constitution of the Republic of South Africa, 1996.
MXOLISI NGULUBE
institutions serve different mandates; however, they all
act as mechanisms for checks and balances of our
democracy, either directly or indirectly. Some such as
the Human Rights Commission4 and Commission for
Gender Equality have duties that may overlap as they are
both concerned with curbing discrimination5, while
others such as the Auditor General6 and the Public
Protector (‘the PP’)7 concern themselves with
scrutinising the government’s behaviour. In one form or
other they are all ‘watchdogs’ of the state, be it directly
or indirectly.8 These institutions can be said to be an
extension of the doctrine of separation of powers as they
ensure that two of the arms of government, the
legislature and executive do not abuse their powers.9
However, they are not a branch of government, as they
are independent.10 These institutions assist in ensuring
that the doctrine is implemented successfully.
The PP is but one of these institutions, founded under
section181 and given ‘teeth’ under section182 of the
Constitution as well as by the Public Protector Act.11 The
4
Supra note 3 s184(1)(a-c).
Ibid s187.
6
Ibid s188.
7
Ibid s182.
8
Briefing Paper 287: The Chapter 9 institutions in South Africa
(2012) 1.
9
C Murray ‘The human rights commission et al: What is the role of
South Africa’s Chapter 9 institutions?’ (2006) 9 PER/PELJ 124.
10
Supra note 3 s181(2).
11
23 of 1994.
5
MXOLISI NGULUBE
PP’s duties include but are not limited to those
mentioned in section182(1) of the Constitution such as
investigating conduct of government at all levels,
including the executive and the legislature, for any
inappropriate behaviour or conduct; and compiling
reports on such conduct.12 Furthermore, the duties also
arise from other statutory provisions such as the
Executive Members Ethics Act13, which gives the PP the
power to investigate any unethical behaviour such as
bribery.14 Furthermore, the Public Protector Act15
elaborates on and reiterates the PP’s powers as stipulated
by the Constitution. The PP’s authority extends to
investigating companies that are parastatals such as
Eskom and Telkom. Other statutes established with the
aim of combating corruption within government such as
the Prevention and Combating of Corrupt Activities
Act16 also confer duties on the PP. Duties such as
advising a complainant of alternative remedies and
summoning witnesses also fall within the scope of the
PP’s duties.17 Moreover, investigating ‘abuse of power’,
‘breach of trust’ and ‘violation of legal duties’ are duties
the PP may perform.18 The PP ultimately serves as the
government watchdog.
12
Supra note 10 s7.
82 of 1998.
14
Ibid s2(2)(a)(iv).
15
Supra note 11.
16
12 of 2004.
17
Supra note 11 s6(4)(d)(ii).
18
Supra note 16 s3(b)(ii)(aa-cc).
13
MXOLISI NGULUBE
The powers of the office of the PP include taking the
required remedial actions as well ‘mediation and
negotiating’.19 However, the powers of the PP are not
without limitations. The PP’s powers extend only to the
legislature and the executive, the PP’s office has no
jurisdiction and authority over the judiciary and thus she
cannot investigate court decisions or the courts’
conduct.20 The judiciary, like the PP is independent and
impartial. Therefore, the office of the PP cannot interfere
with this independence21. Furthermore, the PP cannot
investigate the conduct of private citizens since there are
other institutions that investigate improper conduct of
private persons such as the police and SARS. The PP’s
investigations are documented and she has the power to
make recommendations on her findings.22 These
recommendations have the force of law and thus they
cannot simply be ignored. The controversial Nkandla
report23 serves as an illustration of how serious the
recommendations are since an ad hoc committee has
been assembled to decide what actions to take based on
the report. Furthermore, the Nkandla report serves as an
illustration that if implicated individuals are not satisfied
19
Supra note 16 s3(b)(ii)(aa-cc)..
Supra note 3 s182(3).
21
Van Rooyen and others v S and others 2002 (8) BCLR 810 (CC).
22
Supra note 11 s8(1).
23
Glynnis Underhill ‘Madonsela: Nkandla defenders don’t
understand the law’ Mail & Guardian 24 April 2014 para 2.
20
MXOLISI NGULUBE
with the findings, they may resort to challenging the
PP’s report in a court of law.24
Like all Chapter 9 institutions, the PP enjoys complete
independence and impartiality. Chapter 9 institutions are
afforded the same independence as that of the courts in
section 165(2) of the Constitution. Both certification
judgments of the Constitution ensured that independence
and impartiality were guaranteed by the Constitution and
the court went further to discuss the importance of this.25
The independence and impartiality of all the institutions,
the PP included, is stressed in section 181(2) of the
Constitution and like the courts, these institutions must
fulfill their mandates without ‘fear or favour’. However,
at the very same time, the PP along with the other
Chapter 9 institutions is accountable to the National
Assembly which forms part of the legislative branch of
government.26 This results in a dilemma; a struggle
ensues between this office’s independence and
impartiality; and its accountability to the National
Assembly. The fact that both sides of the struggle have
backing in the Constitution does nothing to better this
24
Pierre De Vos ‘Elections: how can we level the playing field’
available at http://constitutionallyspeaking.co.za/elections-howcan-we-level-the-playing-field/ ,accessed on 24 April 2014.
25
Supra note 1; Certification of the Amendment Text of the
Constitution of the Republic of South Africa, 1996 (Second
certification judgment) 1997 (2) SA 97 (CC) paras 128-134.
26
Supra note 3 s181(5).
MXOLISI NGULUBE
dilemma.27 This dilemma arises due to a number of
reasons. Firstly, neither the Constitution nor the Public
Protector Act28 clarifies to what extent the PP is
accountable and what exactly this accountability entails.
Accountability to the National Assembly puts the PP’s
office’s independence and impartiality at risk, which in
turn affects the office’s functioning as well as its
credibility.29 Because the PP accounts to Parliament, one
can argue that Parliament may block her investigations
on political bases rather than constitutional ones, which
is in direct contrast to the ability to function
independently. Furthermore, the PP is funded by the
National Assembly and money is central to the survival
of such an institution, thus placing the achievement of
financial wellbeing of this institution on one of the
bodies it investigates and therefore forcing it to be
dependent on the National Assembly - after all you
cannot bite the hand that feeds you.
The dilemma is further fuelled by the fact that the
Constitution places a duty on other organs of state to
assist in promoting the independence of this institution.30
27
Pierre de Vos ‘Balancing independence and accountability: The
role of Chapter 9 Institutions in South Africa’s constitutional
democracy’ available at
http://www.academia.edu/3005430/Balancing_Independence_and
_Accountability_The_Role_of_of_Chapter_9_Institutions_in_South_
Africas_Constitutional_Democracy, accessed on 10 April 2014.
28
Supra note 11.
29
Ibid.
30
Supra note 3 s181(3).
MXOLISI NGULUBE
The question is how organs of state such as Parliament
promote the independence of this office while at the
same time trying to hold this office accountable. The
balance between independence and impartiality on the
one hand and accountability on the other is a very
difficult one to strike, and the survival and effectiveness
of institutions such as that of the PP is dependent on this
balance. Our constitutional democracy is also ultimately
dependent on this balance which is seemingly impossible
to achieve.
However, if one thing is clear it is that Chapter 9
institutions can only go about fulfilling their
constitutional mandates when their independence is
guaranteed and protected. Furthermore, these institutions
are also deserving of the support of private citizens in
order for them to continue safeguarding our young
constitutional democracy as they have over the past 20
years.