Taking remedial action is part of Madonsela’s arsenal

It is reported by Rapule Tabane in the latest edition of the Mail & Guardian that the public protector, advocate Thuli Madonsela, feels the "Government no longer has my back". This, according to the report, has to do with the discord and controversy over the expenditure of public money on the Nkandla property occupied by the president and under investigation by her office.

The public protector acknowledges in the interview that she has a "responsibility to strengthen constitutional democracy and we do that by ensuring that ordinary people get to speak truth to power". Her further remark, as reported, that "as an office we do not have coercive powers but we do have persuasive powers that encourage implementation of our recommendations" tends to somewhat understate the scope of the mandate of the public protector. The law envisages considerably more than talking truth to power and making mere recommendations on a "take it or leave it" type of basis.

The legal and constitutional mandate of the public protector has been judicially considered in the case between former public protector, Lawrence Mushwana, and the M&G. In the Supreme Court of Appeal, the unanimous finding of the court, as expressed in the words of Mr Justice Nugent, is instructive:

"[6] The office of the public protector is an important institution. It provides what will often be a last defence against bureaucratic oppression, and against corruption and malfeasance in public office that are capable of insidiously destroying the nation. If that institution falters, or finds itself undermined, the nation loses an indispensable constitutional guarantee.

[7] The constitutional mandate and duty of the public protector are stated by implication in the powers that are recited in s[ection] 182 of the Constitution:

    '(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.

    (2) The public protector has the additional powers and functions prescribed by national legislation.'

[8] The office of the public protector is declared by the Constitution to be one that is independent and impartial, and the Constitution demands that its powers must be exercised 'without fear, favour or prejudice'.   Those words are not mere material for rhetoric, as words of that kind are often used. The words mean what they say. Fulfilling their demands will call for courage at times, but it will always call for vigilance and conviction of purpose.

 [9] The national legislation that is referred to in s 182 is the public protector Act 23 of 1994. The 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. Although the public protector may act upon complaints that are made, he or she may also take the initiative to commence an enquiry, and on no more than 'information that has come to his or her knowledge' of maladministration, malfeasance or impropriety in public life.  

[10] The Act repeats in greater detail the constitutional jurisdiction of the public protector over public bodies and functionaries, and it also extends that jurisdiction to include other persons and entities in certain circumstances. In broad terms the public protector may investigate, among other things, any alleged improper or dishonest conduct with respect to public money, any alleged offence created by specified sections of the Prevention and Combating of Corrupt Activities Act 12 of 2004, with respect to public money, and any alleged improper or unlawful receipt of improper advantage by a person as a result of conduct by various public entities or functionaries.  

[11] But, although the conduct that may be investigated is circumscribed, I think it is important to bear in mind that there is no circumscription of the persons from whom and the bodies from which information may be sought in the course of an investigation. The Act confers upon the public protector sweeping powers to discover information from any person at all. He or she may 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. Those powers emphasise once again that the public protector has a proactive function. 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." 

The power of the public protector to "take appropriate remedial action" goes far beyond merely speaking truth to power on behalf of complainants in the form of "recommendations". In the past, and on the public protector's say so, Cabinet ministers have been dismissed and the former chief of police, Bheki Cele, was required to face the Moloi board of inquiry before facing a similar fate. There was much more than mere persuasion involved in these outcomes. Any failure on the part of the government to comply with the recommendations of the public protector could have led to litigation aimed at compelling compliance with the recommendations made. 

It was surely the knowledge of this possible eventuality that led to the dismissal of Bheki Cele. Those in power realised that either the complainants against his misconduct and maladministration (or the public protector herself) would easily be able to persuade a court of law that the continuing in office of a person who could see nothing wrong in leasing police headquarters at more than three times the going rental rate would have been irrational, and therefore against the precepts of the rule of law. The past successes of the public protector were achieved, not because the government "has her back' but because it is obliged to regard the rule of law as supreme.

Our independent and impartial courts of law are available both to the public protector and to those who complain successfully to her about maladministration of all kinds. In some instances, the facts uncovered in the investigation of the public protector can most appropriately be taken further by referring her reports to the police and prosecution authorities. In others administrative action is appropriate as, for example, when the Competition Commission may need to investigate a cartel. In still others the machinery of the civil law may be most conveniently used to bring about a just outcome.

This occurred when the leases Cele negotiated were cancelled in order to spare the taxpayers the exorbitant costs involved. Neither Cele nor the landlord wanted this result, but the law coerced the outcome that accords with justice. There is no reason to anticipate anything other than a legally sound outcome to the Nkandla debacle. There are prima facie indications of criminality in the preliminary report. If the public protector is wrong in her findings, she can be taken on review in the high court, if she is right, criminal, administrative and civil consequences could and should flow from her findings. Otherwise "an indispensable constitutional guarantee" will be lost.

Paul Hoffman SC is with the Institute for Accountability. www.ifaisa.org

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