Don't muzzle public protector watchdog - SCA

2015-10-08 12:45
Thuli Madonsela. (Lerato Maduna, Netwerk24)

Thuli Madonsela. (Lerato Maduna, Netwerk24)

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Bloemfontein - The Supreme Court of Appeal has clarified the role of the office of the public protector, saying that its findings cannot be ignored.

In its ruling on Thursday dismissing an appeal against part of a Western Cape High Court judgment that SABC COO Hlaudi Motsoeneng be suspended pending a disciplinary inquiry against him, the SCA dismissed part of the same judgment which said the public protector's findings were not binding.

This ruling could affect other recommendations Public Protector Thuli Madonsela has made, including those related to the spending on President Jacob Zuma's Nkandla home.

"The SCA confirmed the finding of the [High] court... that the SABC must institute disciplinary proceedings against Mr Motsoeneng," the court said in a statement.

"In arriving at this conclusion, however, the SCA rejected the reasoning of the court... which had concluded that the directions of the public protector were not ‘binding and enforceable’ in the same way as a court order.

"The SCA noted that a court order is an ‘inaccurate comparator and the phrase 'binding and enforceable' is terminologically inapt and in this context conduces to confusion."

Madonsela’s office ‘vulnerable’

The SCA's ruling said the office of the public protector, like all Chapter Nine institutions, was a "vulnerable one".

"Our constitutional compact demands that remedial action taken by the public protector should not be ignored. State institutions are obliged to heed the principles of co-operative governance as prescribed by [section] 41 of the Constitution."

It said an "affected person" or institution aggrieved by a public protector finding could, in "appropriate circumstances" challenge it by way of a review application.

"Absent a review application, however, such person is not entitled to simply ignore the findings, decision or remedial action taken by the public protector.

"Moreover, an individual or body affected by any finding, decision or remedial action taken by the public protector is not entitled to embark on a parallel investigation process to that of the public protector, and adopt the position that the outcome of that parallel process trumps the findings, decision or remedial action taken by the public protector.

"Before us, all the parties were agreed that a useful metaphor for the public protector was that of a watchdog. As is evident from what is set out above, this watchdog should not be muzzled."

Motsoeneng suspension

Following an application by the DA, the Western Cape High Court ruled that Motsoeneng should be suspended for 60 days, pending the outcome of a disciplinary hearing, as Madonsela had instructed.

Judge Ashton Schippers granted Motsoeneng leave to appeal, but ruled that the interim suspension should come into effect immediately.

The communications minister and the SABC were the other applicants in the appeal.

Madonsela's report recommended action against him for receiving exorbitant salary increases and forging his matric certificate. Motsoeneng however stayed in his job.

This appeal involved part A of the High Court judgment, which dealt with Motsoeneng's suspension and disciplinary proceedings.

Part B, which deals with the setting aside of his appointment as COO "remains to be finalised" by the High Court, the SCA said in its statement.

Read more on:    hlaudi motsoeneng  |  thuli madonsela  |  bloemfontein

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