On Friday Corruption Watch delivered submissions to a full bench of judges at the Supreme Court of Appeal in Bloemfontein in the appeal of SABC COO Hlaudi Motsoeneng.
An earlier High Court judgment found that he should be suspended and disciplinary action taken against him.
The organisation is hoping its submissions will help to once and for all clarify the role and powers of the Office of the Public Protector.
“We applied to be added to this case as amicus curiae (a friend of the court), as we have a particular interest in supporting bodies that are given power by the Constitution to combat corruption,” said Leanne Govindsamy, head of the three-year-old organisation’s legal and investigations division.
“We have disturbing issues of corruption in South Africa, and we therefore should have a public protector with appropriate remedial powers to address that.”
Corruption Watch believes the Public Protector Act should ultimately be amended and brought in line with powers they believe are granted to the office by the Constitution.
The organisation conceded that the public protector’s powers are subject to some limitations: She can only remedy state misconduct; her remedial orders are only binding on organs of state; she may only make a remedial order when it is “appropriate” to do so, that is, when the order is a fitting remedy for the state misconduct at which it is aimed; she can make binding orders as well as non-binding recommendations; and Parliament may regulate the exercise of her powers by legislation, which it has not yet done.
Corruption Watch submits that, once the public protector establishes state misconduct, she also has the power to provide a remedy for it. Should that not be the case, “it renders the public protector ineffective to fight against bureaucratic oppression, and against corruption and malfeasance in public office”.
The organisation criticises the judgment by Judge Schippers, saying “a mere power of recommendation of the kind suggested by the High Court is neither fitting nor effective”.
Corruption Watch then reflects on the history of the public protector’s powers, pointing out that where the interim constitution empowered her to “rectify any act or omission” by “advising” a complainant of an appropriate remedy, the final constitution empowers her to “take appropriate action”.
“This is a deliberate and significant shift in language. It changes the public protector’s role from an advisory one into an active and direct one,” says Corruption Watch.
“The language, history and purpose of section 182 (of the Constitution) make it clear that the Constitution intends the public protector to have the power to provide an effective remedy for state misconduct. It includes the power to determine the remedy and order its implementation,” concludes Corruption Watch.
The court on Friday afternoon reserved judgment.
A copy of Corruption Watch’s application to intervene as amicus curiae can be accessed here: https://www.corruptionwatch.org.za/wp-content/uploads/2015/08/SKM_364e15072011150.pdf
A copy of the heads of argument filed by Corruption Watch and other parties in the matter can be accessed here:
• This article was first published on the eNCA website.