Don't second-guess Public Protector - Madonsela

2016-03-10 09:54
(Picture: AFP)

(Picture: AFP)

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Pietermaritzburg – Advocate Thuli Madonsela used her Secure in Comfort report on Nkandla to emphasise that her office´s powers are legally binding and should not be second-guessed.

While the Constitutional Court´s ruling on the matter was still pending, she said the law as it stood stated that the public protector's findings and remedial action had legal effect and could not be second-guessed.

She was speaking at the University of KwaZulu-Natal’s School of Law on Wednesday.

In her Nkandla report, she found that President Jacob Zuma and his family unduly benefited from upgrades to his private homestead in KwaZulu-Natal.

She recommended that Zuma repay a reasonable amount of the R246 million spent on those upgrades not related to security.

Many politicians, including Deputy Justice Minister John Jeffrey, said Madonsela’s recommendations were not legally binding and that “the Public Protector was not a court of law”.  

The EFF and DA took the matter to court and, in an about-turn in February, Zuma’s lawyer told the Constitutional Court that the president accepted that Madonsela’s findings were binding.

Madonsela said the Supreme Court of Appeal´s (SCA) ruling in October 2015 was a watershed as it spelt out her office´s powers.

“In the SABC vs DA matter, the SCA ruled that remedial action by the Public Protector has legal effect and that absent a review, a decision or remedial action ordered by the Public Protector cannot be ignored by state and public institutions seeking to second-guess or negate the Public Protector’s decision.”

The case involved the DA challenging Hlaudi Motsoeneng´s appointment as the SABC´s chief operations officer in 2014.

She admitted that when the dialogue about her findings started, she was dismissive of the controversy. 

She thought because her office, the Electoral Commission of South Africa, and the Auditor General exercised the same powers, no one would second-guess their decisions, except the courts.

Madonsela said following her Nkandla report there had been much confusion over whether her findings and remedial action were binding or not.

Western Cape High Court Judge Ashton Schippers ruled in the DA vs SABC matter on October 24, 2014 that the Public Protector’s findings and recommendations were not binding and enforceable. He however said a definite ruling was needed on the office´s powers and remedial action.

In September last year, Madonsela said this had become the prevailing law on the matter and it had “detrimentally impacted” her office. This led to the matter being taken to the SCA.

She said the powers of her office could be traced back to the establishment of the office of the Advocate-General in 1979, which was succeeded by the office of the Ombudsman in 1991.

The Public Protector was established in 1993 to investigate corruption.

Madonsela said out of 26 070 cases handled in 2014/15, her office finalised 20 231. It did so with only 325 staff, 57 trainee investigators, and a budget of R218 million.

Read more on:    jacob zuma  |  thuli madonsela  |  nkandla upgrade

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