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Powers of the Public Protector: Are Its Findings and Recommendations Legally Binding? POWERS OF THE PUBLIC PROTECTOR: ARE ITS FINDINGS AND RECOMMENDATIONS LEGALLY BINDING? by MOLEFHI SOLOMON PHOREGO 27312837 Submitted in partial fulfilment of the requirements for the degree: Master of Laws (LLM Research): Public Law Study Leader: Professor Danie Brand Department of Public Law, University of Pretoria November 2017 TABLE OF CONTENTS SUMMARY………………………………………………………………………………………………………………….vi ACKNOWLEDGEMENTS……………………………………………………………………….........................vii CHAPTER 1 Introduction…..…………………………………………………………………………………………………………..1 The Public Protector as a Chapter Nine Institution………………………………………………………1 Research problem………………………………………………………………………………………………………..2 Aims and objectives of study……………………………………………………………………………………….3 Research Methodology………………………………………………………………………………………………..3 Research Questions………………………………………………………………………………………………………4 Limitations…………………………………………………………………………………………………………………….4 Chapter Outline……………………………………………………………………………………………………………..4 CHAPTER 2 CONSTITUTIONAL AND STATUTORY PROVISIONS GOVERNING THE OPERATIONS OF THE OFFICE OF THE PUBLIC PROTECTOR Introduction……………………………………………………………………………………………………………….6 The Constitutional provisions……………………………………………………………………………………..7 Meaning of “Appropriate remedial action’ as contained in the Constitution….…………..11 STATUTORY PROVISIONS REGULATING THE OFFICE OF THE PUBLIC PROTECTOR……...10 Section 6 of the Public Protector Act………………………………………………………………………….12 i Section 7 of the Public Protector Act………………………………………………………………………….17 Section 8 of the Public Protector Act………………………………………………………………………….19 Other statutory provisions regulating the office of the Public Protector…………………….21 Powers of the Public Protector to take remedial action ……………………………………………..23 Conclusion…………………………………………………………………………………………………………………24 CHAPTER 3 PRE-ECONOMIC FREEDOM FIGHTERS V SPEAKER OF THE NATIONAL ASSMEBLY AND OTHERS: DEBATES AND CONTROVERSIES SURROUNDING THE LEGAL EFFECT OF THE REMEDIAL ACTION TAKEN BY THE PUBLIC PROTECTOR INTRODUCTION……………………………………………………………………………………………………….26 Past debates on the Public Protector………………………………………………………………………27 The Public Protector and its inability to make binding decisions……………………………..29 The legal effect of the Public Protector’s remedial actions……………………..33 The contentious issues as gleaned from the various investigations and subsequent reports by the Public Protector…………………………………………………………………………………………………35 The facts and decisions involved in the so-called SABC matter-The build-Up…………..37 The Approach followed by the Western Cape High Court………………………………………..38 The Approach followed by the Supreme Court of Appeal in the SABC matter………….42 A critical analysis of the legal position pre-EFF judgment……………………………………......49 CHAPTER 4 A CRITICAL ANALYSIS OF THE FACTS AND JUDGMENT IN THE EFF CASE Introduction……………………………………………………………………………………………………………..53 ii The Report of the Public Protector on the Nkandla Upgrades: A Brief background…..54 The legal principles and decision of the Constitutional Court in the EFF case……………60 Constitutional obligations that should have been complied with by the National Assembly in holding the President accountable…………………………………………………………………………….66 Distinction between primary and secondary obligations identifiable in the EFF judgment…..67 EFF judgment: Reasons put forward by the court………………………………………………………68 EFF judgment approach on separation of powers…………………………………………….……….73 CHAPTER 5 ISSUES WHICH REMAIN UNCLEAR AFTER THE DECISION OF THE COURT IN THE EFF JUDGMENT Introduction……………………………………………………………………………………………………………….77 The practical implications of the EFF judgment …………………….………………………………….80 Separation of Powers: Has the Public Protector acted beyond the scope of its powers…81 The State of Capture Report……………………………………………………………………………………….81 The CIEX Report………………………………………………………………………………………………………….84 Critiques against the remedial action in the CIEX and the State of Capture reports…....86 The legality of the Public Protector’s remedial Action in the state of capture and the CIEX Reports…………………………………………………………………………………………………………………………90 The Rule against Bias…………………………………………………………………………………………………..92 Section 84(2) (f) of the Constitution: Can the President’s discretion be fettered?….94 What does appointment entail in the context of section 84(2) (f) of the Constitution?…98 Practical implications of the EFF case in light of the CIEX Report: The legal issues…………………………………………………………………………………………………………………………..101 iii Practical implications of the EFF case regarding the SABC matter and the Public Protector’s report into the institution…………………………………………………………………………………………….102 CHAPTER 6 CONCLUSION: FINDINGS Introduction………………………………………………………………………………………………………………..105 A summary of the legal position and its implications for the remedial powers of the Public Protector prior to the EFF judgment: What does this mean for the institution going forward……106 A summary of the legal position post the EFF judgment…………………………………………….109 Conclusion………………………………………………………………………………………………………………….111 iv v SUMMARY In this study, I evaluate the powers of the Public Protector, in light of the controversies that have been caused by the release of reports recently and in the past, with a selected number of reports being brought to the fore. I proceed from the premise that there has not always been agreement regarding the legal effect of the remedial actions taken by the institution. In order to highlight the issues, I discuss past controversies, which have often created attention from various sectors of society, from the media, politicians, lawyers as well as the rest of the citizenry. I will therefore discuss the broader implications of the so-called EFF judgment in light of past and current issues, which have been or are presently the cause of disagreement. In chapter 1 of this study, broader issues are discussed and the aims of the study are set out. Chapter 2 discusses constitutional and statutory provisions regulating the office of the Public Protector (“hereinafter the Public Protector”). My primary focus is on the Constitution of the Republic of South Africa, 1996 and the Public Protector Act, with a brief discussion of other relevant pieces of legislation. Chapter 3 discusses different controversies, which have existed in the past, as well as the legal position before the ruling in the EFF judgment. A build-up of cases mainly involving the South African Broadcasting Corporation (SABC) have been brought before the High Court and the Supreme Court of Appeal for adjudication, with the two respective courts adopting two different approaches on the issue of the legal effect of the Public Protector’s remedial actions. There was thus a need for clarity on the matter, as continued lack of clarity would have led to lack of compliance with the recommendations of the institution being perpetuated. Chapter 4 takes a critical look at the facts and decision of the court in the EFF judgment. Issues that remain unclear even after the ruling in the EFF judgment are discussed in chapter 5. This chapter highlights the fact that, even after the ruling in the EFF judgment, there are still matters which are unclear and therefore require definitive rulings by the courts, for the sake of legal certainty. I conclude the discussion in chapter 6. vi LIST OF ABBREVIATIONS 1. ANC: African National Congress 2. CC: Constitutional Court 3. EFF: Economic Freedom Fighters 4. DA: Democratic Alliance 5. IEC: Independent Electoral Commission 6. NA: National Assembly 7. NNP: New National Party 8. NPA: National Prosecuting Authority 9. PP: Public Protector 10. PPA: Public Protector Act 11. PRASA: Passenger Rail Agency 12. SABC: South African Broadcasting Corporation 13. SARB: South African Reserve Bank 14. SARFU: South African Rugby Football Union 15. SCA: Supreme Court of Appeal 16. SIU: Special Investigation Unit vii ACKNOWLEDGEMENTS First and foremost I would like to thank God for being with me on the journey of writing this dissertation, and generally giving me the strength to complete it. Without his guidance I would not have been able to complete it, as writing requires a lot of time and dedication, not forgetting to mention the pressure that comes with it. I also wish to thank the two women in my life, one deceased and one still alive. These are my late grandmother and my mother. I wish to thank my late grandmother for teaching us the value of education, despite the fact that she herself did not get an opportunity to get an education, due to the tough economic conditions in Botswana during the time. I thank my mother for having been there for me, right from the time I was born up until now, supporting me emotionally and financially. It was growing up around her that exposed me to academia, as she herself is a lecturer by profession. So I can actually say that I was introduced to the art of writing at a very young age. It is also through her that I got to know the difference between an undergraduate Degree and the different postgraduate programmes one can undertake from a very young age of ten years old. I remember growing up, at the age of seven years old, and she asked me; what do you want to be when you grow up? I then looked her in the eyes and replied, a lawyer. I must add though that at the time I did not even know what being a lawyer was all about, and the rest as they say, is history. That is however where my interest in the legal profession was planted, coupled with my love for writing. I thank her for the invaluable contribution she has made in my life, especially in my professional development
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