Is Jeremy Cronin's complaint about the Public Protector legally substantiated?

In a recent article on the Public Protector Jeremy Cronin, First Deputy General Secretary of the SACP contended that:

"Bear in mind the public protector's legislation calls on the office to report directly to parliament and not particularly second hand, via a media exclusive preview lock-up, a media conference, and much prior leaking and tweeting. Why was the report not tabled first in Parliament? This was not an oversight, as we have since learnt. Madonsela has explicitly said she will not formally table the report to the Speaker, until President Zuma has first provided his responses to the report to Parliament as she has recommended. But is it not a matter for Parliament to decide who should be called to respond to the report?" (Emphasis added)

The objection may have far-reaching consequences if the Public Protector in fact acted beyond the scope of her legal competencies.

However, did she? To determine that, it is best to look at what the enabling Act determines.

Section 8 of the Public Protector Act 23 of 1994 regulates the publication of findings by the Public Protector. The relevant provisions read as follows:

"8. (1) The Public Protector may, subject to the provisions of subsection (3), in the manner he or she deems fit, make known to any person any finding, point of view or recommendation in respect of a matter investigated by him or her.

(2)(a) The Public Protector shall report in writing on the activities of his or her office to the National Assembly at least once every year: Provided that any report shall also be tabled in the National council of Provinces.

 (b) The Public Protector shall, at any time, submit a report to the National Assembly on the findings of a particular investigation if -

(i) he or she deems it necessary;

(ii) he or she deems it in the public interest;

(iii) it requires the urgent attention of, or an intervention by, the National Assembly;

(iv) he or she is requested to do so by the Speaker of the National Assembly; or

(iv) he or she is requested to do so by the Chairperson of the National Council of Provinces.

(2A) .... (not relevant)

(3) The findings of an investigation by the Public Protector shall, when he or she deems it fit but as soon as possible, be made available to the complainant and to any person implicated thereby."

Section 8(1) makes clear that the Public Protector may make any findings public ‘in the manner he or she deems fit' and to ‘any person' she would like to.

Subsection (2)(b) further determines that she could submit a report of a particular investigation, in this case about Nkandla, to the National Assembly under specific conditions. Adv Madonsela has a wide discretionary power to decide when this would be necessary, but there is no obligation on her to immediately submit such findings to the National Assembly. The Speaker of the Assembly, however, may request a copy of such a report, though.

Finally, subsection (3) determines that such a report must be made available to the complainant and any person implicated by it as soon as possible. This was done.

Adv. Madonsela has therefore acted completely within the statutory boundaries of her powers.

Maybe Mr Cronin, who is a member of the Assembly, should refresh his memory about such statutory details before he makes such sweeping allegations.

They were clearly aimed at discrediting the Public Protector. One may therefore wonder whether his sole intention was not rather aimed at damage control about the suitability of the presidential candidate of the ruling alliance before the elections.

The author is a constitutional law specialist and runs the initiative Democracy for Peace.

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