Thuli Madonsela fights for the authority of her office

2014-11-23 15:00

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As chaos reigned in Parliament in the wake of the findings of her Nkandla report, Public Protector Thuli Madonsela turned to the courts in a bid for clarity on what exactly her office’s powers entail.

This week, Madonsela filed her application for leave to appeal Western Cape High Court Judge Ashton Schippers’ ruling that her office is not an adjudicatory body and, as such, has no power to enforce her recommendations.

In her affidavit, Madonsela cites “widespread confusion about the binding effect of the findings and remedial action of the Public Prosecutor” – which in effect renders her toothless. She sees this as an assault on democracy and the country’s Constitution.

Madonsela added that having to turn to the courts each time a government department declined to enforce her findings would financially cripple the Public Protector’s office and negatively affect its functioning.

She states that an appeal is necessary to determine the extent of the Public Protector’s powers and “the legal effects of remedial action” taken by her.

This, she says, is “critical to the effective functioning of our democracy” – especially after the parliamentary committee found her decision on Nkandla “not binding”.

“A definitive judgment on the Public Prosecutor’s powers is critical to the effective functioning of our democracy. That this is so … is most clear from the October 2014 decision of the parliamentary committee tasked with dealing with the question of the president’s homestead at Nkandla.

“The committee concluded, relying on the finding of this court, that the findings of the Public Prosecutor in relation to the president’s homestead were not binding,” she wrote.

Judge Schippers, in his judgment in a case brought by the DA over the appointment of SABC COO Hlaudi Motsoeneng – who was permanently appointed to the job, contrary to the recommendations of a report by the Public Protector – ruled that “unlike an order or decision of a court, a finding by the Public Protector is not binding on persons and organs of state”.

In her affidavit, Madonsela wrote: “The lack of clarity … has a significant and negative effect on ordinary South Africans who look to my office for protection from the abuse of public power. The vast majority of the work done by the Office of the Public Protector involves ordinary South Africans trying to give effect to their constitutional rights.

“If the impression is created that reporting a concern about a public authority or maladministration to the Public Prosecutor can have no material effect, [the office] will have been fundamentally and irreparably undermined and crippled.”

Twenty-one years ago this week, Convention for a Democratic SA delegates endorsed South Africa’s new interim constitution, which provided for a Public Protector aimed at keeping both politicians and public expenditure in check.

“The drafters of the Constitution and the legislature did not envisage that the Public Protector would be charged with policing compliance with her reports through litigation,” Madonsela wrote in her affidavit.

And if Schippers’ judgment is allowed to stand, Madonsela says her office will soon be floundering in the red.

“The judgment would have a financially crippling effect on the Public Protector’s capacity to be effective in discharging her constitutional duties because of the added burden of securing adherence to her reports through the courts,” she wrote.

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