Way of the makhadzi

2011-06-04 09:59

Earlier this year, Chief Justice Sandile Ngcobo said, like courts, the work of the ombudsman was crucial to the people’s realisation and enjoyment of their fundamental human rights.

This was particularly critical in countries emerging from ­divisions, oppression and colonialism. But there is a great need for this institution to be understood better to fulfil its constitutional mandate.

My office has ­noticed that many organs of state take ­issue with our processes and my ­decisions out of ignorance of the ­office’s mandate and related powers.

Unfortunately, lawyers advising the state tend to be part of the problem rather than the solution due to their failure to conduct thorough research on the institution and advise ­accordingly.

Recently, a state legal adviser asked me to suspend my investigations to ­allow the court process to conclude and then take it from there.

One would have thought this adviser would have known that I am ­specifically barred by the Constitution from reviewing court decisions.Some choose to resist the remedial action indicated in my reports because they have been misinformed that I can only make recommendations and that they do not really have to implement them.

This is mind-boggling because, ­according to the Constitution, the ­Public Protector should “take” ­appropriate remedial action.

Besides South Africa’s constitutional foundation of the Public Protector, there is growing global jurisprudence indicating that the courts have taken the view that the state must implement the ombudsman’s findings unless the ombudsman’s reasoning is irrational or there are cogent reasons for not ­implementing findings.

Some courts have gone further to state that a public authority cannot unilaterally decide not to implement findings and that a court of law or ­Parliament should adjudicate.

I must say that such a view resonates with me.

Otherwise, the Public Protector ­becomes a gate to nowhere.

In this eventuality, then, my office is a placebo for those seeking access to justice through this avenue as an alternative to courts and tribunals.

These few examples show there is a need for state legal advisers who ­understand that the ombudsman was established to serve as an alternative to the courts and tribunals – providing a quicker and cost-effective justice service to the complainants, most of whom have no financial muscle to take on the mighty state to protect their rights.

Ignoring remedial action is a simple recipe for impunity and with impunity there is no real accountability or ­incentive to change.

During his tenure as president, ­Nelson Mandela once said: “Even the most benevolent of governments are made up of people with all the propensities of human failings.

The rule of law consists in the set of conventions and arrangements that ensure that it is not left to the whims of individual rulers to decide on what is good for the ­populace.”

My scope covers all three arms of government, and the three spheres of government and state entities.The only matters in state affairs that are excluded from the Public Protector’s scrutiny are court decisions.

The Public Protector’s role in our ­democracy transcends the role of the classical government ombudsman.

» The first key and core mandate area is the traditional ombudsman power to redress maladministration within state affairs and public administration.

This mandate goes beyond service ­failure and requires the Public Protector to deal with conduct failure, ­including the abuse of power and state ­resources.

» The second key mandate area is that of being the sole oversight agency on executive ethics as regulated by the ­Executive Members’ Ethics Act and the Ethics Code.

I am thus empowered to investigate the conduct of the ­executive. This includes the president, ministers, deputy ministers, premiers and MECs.

» The third and shared key mandate ­area involves acting as an anti-corruption enforcement agency under the Prevention and Combating of Corrupt Activities Act (PCCAA).

I must say that this is one of the least known ­mandate areas of my office.

» The fourth key mandate area ­positions my office as one of two key agencies to receive protected disclosures from whistle-blowers under the Protected Disclosures Act. This mandate, which complements the mandate ­under the PCCAA, is also a relatively unknown role of my office.

» The fifth mandate, which is another shared mandate, involves the power to resolve disputes regarding information requests under the Promotion of Access to Information Act.

» The sixth and little-known key mandate area involves the power to review the decisions of the National Home Builders Registration Council.

We have something similar in some of our indigenous institutions in this country. For example, there are some parallels between the Venda makhadzi and the Public Protector. The ­makhadzi serves as a buffer between community and traditional leader.

Through voicing citizen concerns and advising, she gives the people a voice while giving the traditional ­leader a conscience.

I’m told that a foolish leader that ignores the wise counsel of a makhadzi will soon find himself ­walking alone.

At the level of our constitutional ­democracy, the idea is to have a high-level independent constitutional ­officer to give citizens a voice while ­giving the state a conscience through exacting accountability from the state when ­citizens complain.

In my office, we try to incorporate the makhadzi’s way.

We seek to reconcile the state through righting administrative wrongs of the state, exacting ­accountability and entrenching ­sustainable, good governance.

We promptly resolve each specific complaint, ensuring redress where ­appropriate while investing efforts in fixing the systemic deficiencies within the state with a view to curb a recurrence.

Where there is service failure, our systemic solutions also incorporate correcting complaints-handling arrangements of state organs involved.

Our view is that remedial action should bring the complainant as close as possible to where they would have been had the state acted properly, not only to provide the denied service.One of the ways to achieve this is ­financial compensation, but at times a simple apology suffices.

This week, I had a family of ­complainants where one of the allegedly wronged family members said the ­following: “It is important to me that government acknowledge that I ­suffered a gross injustice because of the negligence of one of its employees.

I cannot move on until I get an ­acknowledgement and an apology.”

» Madonsela is the Public Protector

» Complaints can be lodged at any of the Public Protector’s 20 walk-in offices across the country, in writing, telephonically (0800 11 20 40), online (www.publicprotector.org)
or at any of our ­mobile or outreach clinics that are held regularly at identified spots across the country

» This is an edited version of a speech Madonsela delivered at her alma mater, the Wits Law School 

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