Thuli Madonsela fights for the authority of her office

2014-11-23 15:00

Multimedia   ·   User Galleries   ·   News in Pictures Send us your pictures  ·  Send us your stories

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.

Join the conversation! encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions. publishes all comments posted on articles provided that they adhere to our Comments Policy. Should you wish to report a comment for editorial review, please do so by clicking the 'Report Comment' button to the right of each comment.

Comment on this story
Comments have been closed for this article.

Inside News24

Traffic Alerts
There are new stories on the homepage. Click here to see them.


Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.

Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire network.


Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.

Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.