COPE WELCOMES CASAC’S APPLICATION TO NORTH GAUTENG HIGH COURT REGARDING PUBLIC PROTECTOR’S POWER
Congress of the People fully supports the application launched today in the North Gauteng High Court by the Council for the Advancement of the South African Constitution (Casac).
We concur with Casac's argument that “Unless her remedial orders are binding on the organs of state to which they relate‚ the power conferred on the Public Protector to take action is ineffective".
Indeed, what is the use of the Public Protector establishing state misconduct but remaining powerless and ineffectual? Why would the Constitution create an office for cosmetic purposes only with no capability for protecting the public from state abuse of power. What is embedded in our constitution cannot be rendered futile by the President and his subservient supporters.
Section 181(2) of the Constitution requires Chapter 9 institution to ‘exercise their powers’ without fear, favour or prejudice. That says something. Section 182 (1) (c ) of the Constitution, very significantly, gives the Public Protector the power ‘to take appropriate remedial action’.
Clearly the president has to act on the recommendations of the Public Protector to help her achieve remedial action that is appropriate. If he disagrees with her and cannot get her to changer her mind, he must request a judicial review. He cannot subvert those recommendations or undermine them as he did by appointing Nathi Nhleko to exonerate him. That is the very abnegation of constitutional democracy.
Justice must not only be done but be seen to be done. In the case of the Nhleko report, the very opposite happened. It is very good that Casac is taking this matter to court.
Indeed the time has come to clarify what powers the Constitution has given to the Public Protector and what measures parliament should have legislated to allow that office to take appropriate remedial action. Legislation is short of the requirements of the Constitution.
Issued by Dennis Bloem, Cope Spokesperson, 28 September 2015
