A strong enforceable Constitution, the separation of powers, no government intervention in judicial decision making, a free press and the right to cast one’s vote in free and fair elections are the key aspects of a strong democracy. However, in South Africa the Constitution further provides for the establishment of state institutions to both assist and reinforce the democratic principals and also to act, in some ways, as watchdogs over government and society.
The success and impact of these bodies in many ways reflects the true health of a democracy, as they indicate a state’s ability to self-regulate and to balance its powers without the intervention of the courts.
These bodies are created in terms of section 181 of the Constitution, and include: the Office of the Public Protector; the South African Human Rights Commission; the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; the Commission for Gender Equality; the Auditor General; and the Electoral Commission. These institutions are required to be independent and impartial. Importantly, other organs of state, through legislative and other measures, are required to assist these institutions in ensuring their independence, impartiality and effectiveness.
The role of the public protector (PP) has come under the spotlight in connection with the media coverage and investigations surrounding the Imvume/Oilgate saga. But the realities are that many people do not have an understanding of the role, its mandate and the crucial function it fulfils.
The PP’s power comes directly from the Constitution and, in turn, the Public Protector Act (“the Act”). In this regard, the PP has the power to investigate any conduct in state affairs or public administration in any sphere of government that is alleged to be improper or to result in any impropriety or prejudice, to report on that conduct, and, if necessary, to take appropriate remedial action.
This role is expanded in the Act, which states that the PP is empowered to investigate, either on his/her own initiative or on receipt of a complaint, any alleged conduct of the following nature:
maladministration in connection with the affairs of government at any level;
abuse or unjustifiable exercise of power;
certain improper or dishonest acts relating to corrupt behaviour within government;
improper or unlawful enrichment of a person performing a public or government function at any level;
an act or omission by a person in the employ of government that results in prejudice to another
.
The PP, while answerable to the National Assembly (and National Council of Provinces), is also, and primarily, answerable to the public. The office has been created to ensure that public interests are protected at government level through the reduction and eradication of corruption and the furtherance of ethical governmental behaviour. In the event of an adverse finding the PP is empowered to, amongst other things, mediate or arbitrate, make a recommendation as to sanction or refer the matter to a competent authority such as the National Prosecuting Authority. As the PP fulfils a public function, only in very limited circumstances can its reports be kept confidential. Bearing in mind that the PP is government appointed, its successful, effective and transparent functioning is a requirement that the public must insist on.
A strong and effective PP not only keeps government in check, it keeps the public’s faith in the system of democracy in place through policing the bugs of corruption and maladministration. The overall effect can be local and international confidence, which assists with stability and growth.
Accordingly, while people tend most often to look to the courts for justice and protection, the PP has a role that may be one of the factors on which the ultimate success of our country depends.
Greg Hamburger is an attorney at Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg. Visit the firm’s website at www.rwr.co.za.