The Legal Status of the Public Protector’s Remedial Actions

The legal status of the powers of the Public Protector’s remedial actions has been forcefully brought to the fore by the recent permanent appointment of Mr Hlaudi Motsoeneng to the position of the COO of the SABC after the Public Protector had released her investigative report “into the allegations of maladministration, systemic corporate governance deficiencies, abuse of power and irregular appointment of Mr Hlaudi Motsoeneng by the South African

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Broadcast Corporation (SABC)”, entitled “[w]hen governance and ethics fail” (Report No. 23 of 2013/2014).

However, this was not the first time the efficacy of the Public Protector proposed remedial action came under spotlight. Nor, it seems, it would be the last. In her report relating to the current President violation section 5 of the Executive Ethics Code promulgated in terms of the Executive Ethics Act 82 of 1998 by failing to declare timely his financial interests as required, the Public Protector recommended, among others, that this Act be amended to address the issue regarding which office or person must the Public Protector submit her report to involving the breach of ethical conduct of the President. In terms of this Act a report on alleged ethical breaches by members of the Cabinet must be submitted to the President. Cabinet member includes the President. This presented a conundrum in this case because the report related to the President himself (Report No. 1 of 2010/2011). The submission of the report to the President potentially violated the principle that no one should a judge in her own case. This has not been done as borne out by the confusion, again, as to who or which office must the Public Protector submit the final report on the upgrades at President Zuma’s private residence. Although the report is not necessarily about the President, it relates to the President’s private residence. Furthermore, in this latter report the Public Protector recommended, among others, that the President repay the reasonable costs of measures implemented at his private residence that did not relate to security and to report to Parliament on the actions he has taken to implement the Public Protector’s findings within 14 days of the receipt of the report (Report No. 25 of 2013/2014).

The President has since purported to report to Parliament on the Public Protector report although long after fourteen days had passed as requested by the Public Protector. Startlingly, the President second-guesses the Public Protector, or at the very least suggest that someone do, on the question of the payment of reasonable costs that did not relate to security. According to the President the Minister of Police will have to decide whether or not the President has to pay or not (Zuma, 2014: 19). As a result of this report a warfare playing itself out in the media has erupted between, on the one hand, the Presidency and the African National Congress and the Public Protector on the other). It is against this background that this paper has to be understood. It is also important, as earliest as convenient, in order to avoid unnecessary and unfair imputations being made against this discussion, to state what this discussion is not about. This discussion is not about Mr Motsoeneng’s suitability to hold the position of the COO of the SABC. Nor is it about the correctness or otherwise of the Public Protector’s report. But this paper is about the legal status of the Public Protector’s remedial action. In other words, what weight should the decision makers to whom the Public Protector’s report is directed attach to the contents and the remedial action proposed therein. It is also convenient to report upfront that this paper is written from the

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premise that the Public Protector’s reports are correct and enforceable until they are set aside by a court of law.

The remedial actions of the Public Protector are not in law binding (Brynard, 1999: 17;

Bishop & Woolman, 2005: 24A-3; Mubangizi, 2012: 312). To buttress this point the current Public Protector is quoted as having said that “[a]s an office, we don’t have coercive powers but we do have persuasive powers that encourage implementation of our recommendations” (Tabane, 2013: 2). Bishop & Woolman (2005) share the Public Protector’s view in this regard. According to these authors this “is the real measure of its strength” because change is not brought to bear through the application of coercion but through the application of reason (2005: 24A-3). Brynard (1999: 18) posits that publicity is a potent weapon in this regard as it draws attention to and engenders sympathy from the public. The publication can also shame the culprits into submission and thus implementation of the Public Protector’s remedial action (see also Bishop

& Woolman, 2005: 24A-3). This is however not always potent. Advocate Madonsela is aware that:

“failure by the state to cooperate [with investigations] and comply [with remedial action] impacts on our ability to deliver on our promise to provide prompt remedial action to complainants…. This may also dent our credibility in the eyes of the public” (The Public Protector, 2010: 6). It is unfortunate that many who occupy position of power do not share late President Mandela’s vision that institutions like the Public Protector were:

“never reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my government and office and judged against it…. I drew reassurance that the ordinary citizens of our country would be protected against abuse, no matter from which quarter it would emanate” (Madonsela, 2013: 2).

The lack of this vision from many of our leaders has resulted in the legislature amending the Public Protector Act by inserting section 7 (11) to the Act which empowers the Public Protector to “make rules in respect of any matter … which has a bearing on an investigation or on any matter incidental thereto…” Addressing a roundtable discussion where these draft rules where under consideration the Public Protector said that “[o]nce the rules were in force, state organs would be fully aware of what is expected of them in terms of cooperating with investigations and complying recommendations” (sic) (The Public Protector, 2010: 6). Due to the importance of the rule relating to remedial action it is only proper to reproduce it in full:

Monitoring of agreement and remedial action to be take

48 (1) The Public Protector may, if remedial action has been taken by an organ of state, in writing request the organ of state involved to-

(a) Indicate in writing, within the period prescribed by the Public Protector, whether or not the recommendation is accepted and will be implemented; or

(b) Provide the Public Protector within the period determined by the Public Protector, with an action plan on how and within what timelines the recommendation will be implemented.

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(2) The Public Protector shall monitor the implementation of-

(a) any remedial action to be taken, which was accepted in terms of subrule (1) (a) by the organ of state involved;

(b) an action plan that was provided in terms of subrule (1) (b); or

(3) The Public Protector may if a recommendation or action plan is not implemented or the terms of an agreement to resolve the matter is not adhered to-

(a) take the matter up with the relevant minister or member of executive council; or (b) refer the matter to the National Assembly or Provincial Legislature for assistance.

The Public Protector has declared that in the main her recommendations are adhered to (see Brynard, 1999: 17). However, there are some high profile investigations that stand in contrast to the Public Protector’s assertions. She has stated that those where a drop in an ocean of adherence and compliance. The paucity of such cases is however not the reason to relax. The concern about these few cases largely rests on their high public profile. Despite the high compliance rate the rules were created to ensure that in the event there is none compliance stern action be taken. Commendable the idea to promulgate the rules it may be, they fall woefully short of enforcing compliance with the Public Protector’s remedial action. Of particular concern is subrule (3). In terms of subrule (3)(a) where a functionary fails to comply with the remedial action, the Public Protector’s has to take the matter up with that functionary’s political head or may refer the matter to national or provincial parliament. In other words the Public Protector relies on the goodwill of others for the implementation of her remedial action. This rule was not thought through. This is so because, as Bishop & Woolman (2005: 24A-7) put it:

“[t]he political nature of the Public Protector’s brief means that it must be able to engage other political actors in relatively robust exchange. The sensitivity of the material handled by the Public Protector often means that its investigations and its reports, even if they have no binding authority, can ruffle feathers and bruise egos”.

Adv Gary Piennar, a senior investigator in the Office of the Public Protector has bemoaned the

“lack of commitment by some political leaders and officials to justice, equity and fairness, as interpreted by the Public Protector, and to fight corruption. We have encountered instances of reluctance and even failure to co-operate or to implement recommendations” (Pienaar 1999: 7).

The Public Protector herself has commented:

“I am often surprised when confronted with organs of state that think my decisions are allegations or suggestions…. The common scholarly understanding confirmed by a legal opinion commissioned by and given to Parliament recently, is that the decisions of these institutions cannot be second-guessed” (Madonsela, 2013: 6).

The legal opinion the Public Protector refers to proclaims in no uncertain terms that findings of the Public Protector are not susceptible to “confirmation, ratification or approval by

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any other institution or organs of state, due to the independence of the office of the Public Protector” (Ngcobokazi & Vanara, 2014: 11; see Special Investigating Unit versus Ngcingwana, 2011: 392). The Public Protector’s report and recommendations are supposed to be “final and ready for action” (Ngcobokazi & Vanara, 2014: 11).

However, many a time politicians do not share this view. The fracas surrounding the appointment of Mr Motsoeneng makes this plain. In the “[w]hen governance and ethics fail”

report, alluded to earlier, the Public Protector has made unsavoury findings against Mr Motsoeneng. Despite this, the political head responsible for the SABC (the Minister of Communications, Ms Faith Muthambi) appointed a private law firm to second-guess the Public Protector’s investigations and findings. This ignored Froneman J obiter dictum in Special Investigating Unit versus Ngcingwana (2011: 392) that the constitutionally established Public Protector enjoyed primacy over a body established by ordinary legislation. What more about an entirely private firm not, at the very least, statutorily mandated to investigate governmental matters? According to Minster Muthambi this law firm exonerated Mr Motsoeneng. As result of this private firm’s findings the Minister endorsed the appointed Mr Motsoeneng permanently to the position of the COO of the SABC by the SABC board. The said law firm has however denied that it had advised the SABC on the appointment of Mr Motsoeneng (Shoba, Mokone & Ngalwa, 2014: 2). To put matters into perspective the Public Protector had found Mr Motsoeneng guilty on a number of allegations made against him including having lied about his qualification when he was appointed at the SABC, purging staff, increasing his salary by 63% in one year. She recommended that the SABC appoint a permanent COO. Surely, the Public Protector could not have anticipated that Mr Motsoeneng will be the preferred choice to this position after her damning findings against him. This is borne out by her response to a journalist’s question about the appointment of Mr Motsoeneng. She indicated that she was surprised by the appointment of Mr Motsoeneng (Staff Reporter, 2014: 1). The media reports that the Public Protector has subpoenaed Minister Muthambi after the latter had snubbed the Public Protector’s request for a meeting to discuss the matter of Mr Motsoeneng’s appointment (Legalbrief, 06 August 2014).

In this matter the Public Protector’s remedial actions where not heeded and she has no powers to enforce them except maybe if someone or the Public Protector herself approach a court of law seeking the implementation of these recommendations (the Democratic Alliance has since approached the high court to set aside the appointment of Mr Motsoeneng). Surely, the Public Protector should not rely on an outside agency before her recommendations are complied with as that may easily diminish the stature of her office. The efficacy of the referral of non-compliance to Parliament is also questionable. However, according to Bishop & Woolman (2005) the Public Protector’s reports may enable Parliament to exercise effective oversight over the Executive. Although this is possible, it is unfortunate that our Parliament is generally supine, if

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not protective of the Executive. The Executive runs roughshod over Parliament. It is common cause that one of the African National Congress Member of Parliament resigned because, in his view, Parliament stalled a thorough investigation into the so-called arms deal. This is an indictment on our Parliament. For this reason, and the fact that our democracy is dominated by one party to which members of Parliament owes allegiance to and serve at its behest, the referral to Parliament of non-compliance with the Public Protector’s remedial action is unlikely to bear fruits if the culprit is a senior member of the ruling party (Feinstein, 2007). The shenanigans involving the ANC in Parliament and the Public Protector bears testimony to this. The Public Protector had written a letter to the President bemoaning the fact that the President’s purported comment on her report was not a comment on her report. The ANC caucus in Parliament registered its disappointment on the Public Protector for having written that letter as the President’s report was before Parliament. It would seem that the ANC Parliamentary caucus is hell bent on protecting the President even before the Parliamentary process has begun. It is beyond the scope of this discussion to consider the appropriateness or otherwise of both the Public Protector’s letter and the responses it solicited.

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