The Public Protector Act: the importance of being proactive

Looking back, going forward

With Thuli Madonsela’s tenure as Public Protector ending, much has been written about possible replacements, applicable legal processes, the qualities prospective candidates must possess, and the role the public can and should play to ensure that her replacement is not a hack, a stooge or otherwise inept and/or corrupt.

This is all-important, for we must not be coy: there are those who are not only undermining our democracy, but are actively destroying it. They appear to be succeeding. We are in trouble. As a public, we must be vigilant in holding those who wield power—as our servants—accountable.

The way in which civil society and members of the public typically do this is by reacting to the more brazen abuses of power. Given the systemic abuse that is characteristic of our political community, this makes sense. But, we must try to be more proactive. We must try to identify avenues of abuse before they are exploited, closing them off where possible. Only if we do this can we start to make progress in the fight—that is what it is—against those who would destroy democracy for their own selfish gain.

It is in this proactive spirit that I consider here five areas of constitutional concern relating to the office of the Public Protector. The problem areas are apparent from even the most casual perusal of the Public Protector Act, 1994 (‘the Act’). The Act is constitutionally-envisaged legislation that regulates the office of the Public Protector.

Since we are not guaranteed another competent public servant with integrity, let us at least try to ensure that the structures are in place to promote accountable, transparent and effective exercise of the enormous power possessed by the Public Protector.

Deputy Public Protector

The Act says that if the Public Protector is unable to perform the functions of her office (or if her office is vacant), the Deputy Public Protector (‘DPP’) is empowered to perform her functions. Quite apart from the fact that the DPP is second-in-charge, this possibility makes the office and the person occupying it a prime target for external political and private pressures. It is crucial that the position be insulated from such pressures. In various ways, the Act fails to do this.

a. Period of appointment: Fixed, defined and non-renewable terms of office are crucial to independence. When the possibility of a long appointment or its extension can be offered to candidates for office or existing office-holders, the scope for abuse is increased. This is why the Public Protector is appointed for a non-renewable period of 7 years. Under the Act, though, the DPP is appointed for an unspecified period, determined by the President. Moreover, this appointment may be renewed for an additional term.

b. Terms and conditions: Much like appointment, the terms and conditions of employment provide a means by which office-holders can be pressured by corrupting influences. It is for this reason that the Constitution provides that the remuneration and other terms and conditions of employment of the Public Protector may not be adversely altered during her term of office. For the DPP, however, the terms and conditions of his employment are not secure in this way. They can be altered at any time during his term of office.

c. Conflict of interests: As a rule, members of the office of the Public Protector must serve in a full-time capacity, to the exclusion of other offices. This is important, for it prevents conflicts of interest. The DPP, however, can be exempted by a committee of the National Assembly from this vital safeguard.

d. Suspension: The President may only suspend the Public Protector after the start of the proceedings of a committee of the National Assembly for her removal. He may suspend the DPP, however, simply on receipt of a complaint. This renders the office of the DPP insecure, for the threat of suspension on frivolous grounds is more real than in the case of the Public Protector. This is aggravated by the fact that suspension can be accompanied by a suspension of the payment of remuneration to the DPP.

Given the role of the DPP, the office is inadequately secured from potential external interference, political or otherwise. The legislation must be amended.

The appointment of staff

The Public Protector has wide-ranging powers to determine the remuneration, allowances and other conditions of employment of her staff.

This power is subject to National Assembly control, which can disapprove of her determinations. If the National Assembly disapproves of her determinations, these cease to be of force and effect. This is consistent with Constitutional Court jurisprudence. It is an important check on the Public Protector’s powers, as it provides the Assembly with general oversight of her office.

The Act, however, says that anything done in terms of the Public Protector’s determination prior to National Assembly disapproval will be deemed to be valid. Although deeming unlawful acts valid is sometimes necessary to prevent administrative chaos, a blanket provision of this nature is almost certainly unconstitutional. Deemed validity is an exception to the general rule that action taken pursuant to an unlawful exercise of power is without force and effect. Unless this general rule applies, there is the potential for serious abuses of power (by the Public Protector, or her staff) to go unchecked.

The powers of the Public Protector

a. Discourteous: The investigative powers of the Public Protector under the Act are broad. This is good. The Act, however, empowers her to investigate ‘discourteous’ conduct. It is not clear what such conduct entails, especially since she is already afforded the power to investigate abusive, unfair, capricious, delayed and other kinds of unjustifiable exercises of power. Even assuming this is a legitimate power to vest in the Public Protector, it must at least be specified with greater precision. Absent this precision, the scope for abuse by a Public Protector is obvious.

b. Judicial oversight: Under the Act, the Public Protector and her staff cannot be compelled to answer questions in court proceedings in connection with any information obtained in the course of her investigations. This immunity conflicts with various features of the Constitution, such as the fact that: (i) all public power is subject to the Constitution and can be judicially reviewed; (ii) no person may interfere with the courts’ functioning; and (iii) all organs of state must assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness. Whilst there may be occasions when information must be kept confidential, this is usually dealt with by holding proceedings in camera, through a non-disclosure order, or in cases of extreme confidentiality by way of a ‘judicial peek’ (where only the court has access to the information).

c. Prescription: Outside of special circumstances, the Act says that Public Protector can only investigate matters reported to her within 2 years of their occurrence. Even assuming that limiting the Public Protector’s powers in this way is lawful, the period from which a time-limit runs must be from the moment the public had knowledge of the relevant facts. As it stands, those who abuse power but keep it secret are rewarded. Perversely, secrecy is encouraged by the Act.

Publication of findings

The Constitution says that any ‘report issued by the Public Protector must be open to the public unless exceptional circumstances, to be determined in terms of national legislation, require that a report be kept confidential.’ The Act lists five sets of ‘exceptional’ circumstances, namely, when publication is likely: (a) to endanger the security of citizens; (b) to prejudice an investigation; (c) to disturb the public order or undermine public peace or security; (d) to be prejudicial to the interests of the Republic; or (e) in the opinion of the Public Protector to have a bearing on the effective functioning of her office.

Whilst the first two items might be constitutionally acceptable, the others are impermissibly vague or afford too much discretion to the Public Protector (and, therefore, are unconstitutional). Quite apart from the fact that the wording is odiously reminiscent of the state security legislation of the 1980s, the Act allows for abuse by any party (including the Public Protector) who wishes to suppress disclosure of a report.

Insult and contempt

The Act says that no person ‘shall insult the Public Protector or the Deputy Public Protector’. It also prohibits actions which, if said about a court during proceedings, would constitute contempt of court. If a person acts in either of these ways, they will be liable to a fine of up R 40,000, imprisonment for a period of up to 12 months, or both.

It is not clear whether an offence of contempt is constitutional. But, if it is, the offence of insult is certainly not. This is in part because contempt is already an offence. Anything that does not constitute contempt, but is in some way insulting, falls within the domain of legitimate criticism that characterises our robust, diverse and plural democracy. Whether in paintings, polemics or poems, the Constitution gives us the right to lampoon or insult our public officials.

The limits of civil society

Our current Public Protector has done her job. Good. This anomaly, however, should not blind us to the fact that the Act affords her powers that she cannot constitutionally possess. We must be forward-looking in our criticism, activism and strategic litigation. The Act is constitutionally deficient in various ways. Rather than wait for someone to abuse the powers afforded by the Act, we should move to have the legislation changed. If Parliament does not amend the legislation, someone will have to go to court to compel it to do its job.

If experience is a reliable guide, here is a prediction of how this litigation will unfold. The state will oppose the court application. It will be years before the case is resolved. It will cost millions of rands. The state will eventually lose. It will be ordered to amend the Act. On its first attempt, it will fail to comply with the court’s order. We will then have to go to court again. This will take another year or two. The state will oppose. It will lose. This time the court will effect the changes itself. After all of this, what will happen? Well, the Executive will probably just appoint another Simelane, Phiyega, Jiba, Mdluli, Moyane, Ntlemeza, Van Rooyen, Abrahams, or [insert name of some inept, dishonest or corrupt yes-man].

This possible future does not mean that we will not try, or that we do not hope things might be different. Of course we will; of course we do. But, there is only so much that civil society, with the Constitution as both shield and sword, can do. Things will only change with a change of our political culture. Only with change will the destruction of our political community be halted. In times like this, it is difficult not to be cynical. One way that I try to avoid this destructive attitude is by remembering this dictum of Lord Salisbury: Delay is life.

Matthew Kruger is Legal Researcher at the Helen Suzman Foundation.

This article first appeared as an HSF Brief.