A DEPUTY minister, the chief whip of the ANC in Parliament and a host of the party’s supporters seem to think the office of the public protector is some sort of advisory body that reports to Parliament on the basis that it may "take or leave" the recommendations in its reports. The Nkandla debacle has prompted these interesting gyrations; every effort is made to protect those implicated in the report of the public protector.
The legal and constitutional mandate of the public protector has been judicially considered in the case between former public protector Lawrence Mushwana and the Mail & Guardian. In the Supreme Court of Appeal, the unanimous findings of the court, as expressed in the words of Judge Robert Nugent, are instructive:
"(6) The office of the public protector is an important institution. It provides what will often be a last defence against bureaucratic oppression, and against corruption and malfeasance in public office that are capable of insidiously destroying the nation. If that institution falters, or finds itself undermined, the nation loses an indispensable constitutional guarantee.
"(7) The constitutional mandate and duty of the public protector are stated by implication in the powers that are recited in section 182 of the constitution:
"(1) The public protector has the power, as regulated by national legislation: (a) to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; (b) to report on that conduct; and (c) to take appropriate remedial action.
"(2) The public protector has the additional powers and functions prescribed by national legislation.
"(8) The office of the public protector is declared by the constitution to be one that is independent and impartial, and the constitution demands that its powers must be exercised ‘without fear, favour or prejudice’. Those words are not mere material for rhetoric, as words of that kind are often used. The words mean what they say. Fulfilling their demands will call for courage at times, but it will always call for vigilance and conviction of purpose.
"(9) The national legislation that is referred to in section 182 is the Public Protector Act 23 of 1994. The act makes it clear that, while the functions of the public protector include those that are ordinarily associated with an ombudsman, they also go much beyond that. The public protector is not a passive adjudicator between citizens and the state, relying upon evidence that is placed before him or her before acting. His or her mandate is an investigatory one, requiring pro-action in appropriate circumstances. Although the public protector may act upon complaints that are made, he or she may also take the initiative to commence an inquiry, and on no more than ‘information that has come to his or her knowledge’ of maladministration, malfeasance or impropriety in public life.
"(10) The act repeats in greater detail the constitutional jurisdiction of the public protector over public bodies and functionaries, and it also extends that jurisdiction to include other persons and entities in certain circumstances. In broad terms the public protector may investigate, among other things, any alleged improper or dishonest conduct with respect to public money, any alleged offence created by specified sections of the Prevention and Combating of Corrupt Activities Act 12 of 2004, with respect to public money, and any alleged improper or unlawful receipt of improper advantage by a person as a result of conduct by public entities or functionaries.
"(11) But, although the conduct that may be investigated is circumscribed, I think it is important to bear in mind that there is no circumscription of the persons from whom, and the bodies from which, information may be sought in the course of an investigation. The act confers upon the public protector sweeping powers to discover information from any person at all. He or she may call for explanations, on oath or otherwise, from any person; he or she may require any person to appear for examination; he or she may call for the production of documents by any person; and premises may be searched and material seized upon a warrant issued by a judicial officer. Those powers emphasise once again that the public protector has a proactive function. He or she is expected not to sit back and wait for proof where there are allegations of malfeasance, but is enjoined to actively discover the truth."
The legal and constitutional mandate of the public protector has been judicially considered in the case between former public protector Lawrence Mushwana and the Mail & Guardian.
These findings have to be followed in the High Court and are likely to be approved by the Constitutional Court. This explains why no litigation attacking the report of the public protector on Nkandla has been launched. Instead, sabres are rattled to no effect and a great deal of barking at the moon is heard on the topic of the public protector’s powers.
The right of the public protector to "take appropriate remedial action" goes far beyond merely speaking truth to power on behalf of complainants in the form of "recommendations". In the past, and on the public protector’s say so, Cabinet ministers have been dismissed and former national police commissioner Bheki Cele was required to face a board of inquiry before facing a similar fate. There was much more than mere persuasion involved in these outcomes. Any failure on the part of the government to comply with the public protector’s recommendations could have led to litigation to force compliance.
It was surely the knowledge of this possible eventuality that led to Cele’s dismissal; his recent emergence as a deputy minister confirms this. Those in power realised that either the complainants against his misconduct and maladministration (or the public protector herself) would easily be able to persuade a court of law that the continuing in office of a person who could see nothing wrong in leasing police headquarters at more than three times the going rental rate would have been irrational, and therefore against the precepts of the rule of law. The past successes of the public protector were achieved not because the government "has her back" but because it is obliged to regard the rule of law as supreme.
Our courts are available both to the public protector and to those who complain successfully to her about maladministration of all kinds. In some instances, the facts uncovered in an investigation by the public protector can most appropriately be taken further by referring her reports to the police and prosecution authorities. In others, administrative action is appropriate as, for example, when the Competition Commission may need to investigate a cartel. In still others, the machinery of civil law may be most conveniently used to bring about a just outcome. This occurred when the leases Cele negotiated were cancelled to spare taxpayers exorbitant costs. Neither Cele nor the landlord wanted this, but the application of the law forced the outcome that accords with justice. There is no reason to anticipate anything other than a legally sound outcome to the Nkandla debacle. An action for unjust enrichment beckons to the complainants. There are prima facie indications of criminality in the public protector’s report on Nkandla and criminal charges are under investigation. If the public protector is wrong, she can be taken on review in the High Court. If she is right, criminal, administrative and civil consequences could and should follow. Otherwise what Nugent calls "an indispensable constitutional guarantee" will be lost.