By Pierre De Vos
First published on Constitutionally Speaking
It is not easy to engage in a clear-eyed and unemotional discussion of any court judgment that deals with the legal status of the findings and remedial action issued by the office of the public protector.
It may therefore be of some value to try and provide a fair-minded and even-handed legal analysis of the reasoning of the Supreme Court of Appeal (SCA) in the case of South African Broadcasting Corporation and Others v Democratic Alliance and Others, in which the SCA offered helpful guidance on the legal effect of the findings of the public protector in our constitutional democracy.
If you strip away the political considerations and hone in the essential legal question regarding the legal status of the findings and remedial action imposed by the public protector, you are confronted with an interesting legal question.
The question is this: what is the legal status of the findings and remedial action imposed by the public protector? Are they similar to court judgments (something that is difficult to accept because the public protector is not a judge and does not operate as a court of law)? Are they mere recommendations (also difficult to accept because it would destroy the effectiveness of her office)? Or are they binding in the similar way that decisions of administrative bodies are binding (the option preferred by the SCA in the SABC judgment)?
The reason why it is so important to answer this legal question goes far beyond the question of whether President Jacob Zuma is legally required to pay back a reasonable amount of the cost of the non-security related upgrades at Nkandla “as determined with the assistance of the National Treasury”. If the findings and remedial actions of the public protector are not at all binding it would allow those found guilty of maladministration, unethical or improper conduct or corruption, to become judges in their own cause. In effect, the guilty would be granted the power to absolve themselves of guilt, turning the public protector into a toothless old tiger locked up in a zoo.
As the SCA pointed out the question of “who will guard the guards themselves?” is not a new one. When a person or body is granted the right to exercise public power, the temptation will always arise to abuse that power. In modern constitutional states it has become widely accepted that in order to ensure governmental accountability, it is necessary for the guards to require a guard. If the guardians are not guarded themselves, they will be tempted to abuse their power. “And in terms of our constitutional scheme, it is the public protector who guards the guards”.
It is for this reason that section 181(2) of the Constitution establishes the Office of the Public Protector as an independent body “subject only to the Constitution and the law”. The section also commands the public protector to be impartial and to exercise her powers and perform her functions “without fear, favour or prejudice”. Although section 181(5) states that the public protector is accountable to the National Assembly, the office of the protector is not part of the government and is not an organ of state. Nor is it “subject to national executive control.” Quoting from an earlier Constitutional Court judgment the SCA noted that:
“This implies the ability to have access to funds reasonably required to enable the Commission to discharge the functions it is obliged to perform under the Constitution and the Electoral Commission Act. This does not mean that it can set its own budget. Parliament does that. What it does mean, however, is that Parliament must consider what is reasonably required by the Commission and deal with requests for funding rationally, in the light of other national interests. It is for Parliament, and not the Executive arm of Government, to provide for funding reasonably sufficient to enable the Commission to carry out its constitutional mandate. The Commission must, accordingly, be afforded an adequate opportunity to defend its budgetary requirements before Parliament or its relevant committees.”
Moreover, because the public protector is administratively independent there can be no control over those matters directly connected with the functions which the public protector must perform. Because another body cannot have any control over the functions performed by the public protector it is not permissible for another body or person to establish “a parallel process to that already undertaken by the Public protector and to thereafter assert privilege in respect thereof”. Such a parallel process would, in effect, compromise the independence of the public protector. As the SCA explained:
“If indeed it was aggrieved by any aspect of the public protector’s report, its remedy was to challenge that by way of a review [in the courts]. It was not for it to set up a parallel process and then to adopt the stance that it preferred the outcome of that process and was thus free to ignore that of the public protector.”
Protector better suited to probe maladministration than entities under investigation
The SCA further made the obvious point that the public protector was plainly better suited to determine issues of maladministration within a body or by a person, than the body or person being investigated would be. While the public protector is independent and impartial, any other person or body tasked to investigate the same matter which the public protector has investigated and had made findings about, will not be independent and impartial – at least not to the same extent as the public protector. This is why the findings and remedial action of the public protector “cannot simply be displaced” by an internal investigation conducted by the very body that was investigated (or by any other body or person).
If this is correct, the question arises whether the body or person implicated in wrongdoing by the public protector and which she ordered to take remedial action can nevertheless ignore the findings and remedial action of the public protector? Clearly, if the findings and remedial action are reviewed and set aside by a court of law, they can be ignored. But what if they are not challenged in a court? Can these findings and remedial action nevertheless be ignored on the basis that the public protector is not a judge and that her findings do not have the same status as a court judgment?
Answering this question by agreeing that the findings are far more than mere recommendations, the the SCA advanced several interesting arguments.
First, the SCA pointed out that there was a significant difference between the language used in the interim Constitution regarding the powers of the public protector and the language used in the final Constitution.
“Instead of empowering the public protector to ‘endeavour’ to resolve a dispute, or ‘rectify any act or omission’ by simply ‘advising’ a complainant of an appropriate remedy as under the Interim Constitution, the Final Constitution empowers the public protector to ‘take appropriate remedial action’.”
This means that the powers conferred on the public protector in terms of s 182(1)(c) of the final Constitution “far exceeded those of similar institutions in comparable jurisdictions”. These powers can be augmented by the legislature as it is empowered to grant “additional” powers to the public protector, but these powers remain original powers over and above any additional powers that may be granted by the legislature.
Second, the SCA noted that it would be problematic to assume the findings and remedial action of the public protector are mere recommendations which the wrongdoer can either accept or reject.
“Our Constitution sets high standards for the exercise of public power by State institutions and officials. However, those standards are not always lived up to, and it would be naïve to assume that organs of State and public officials, found by the public protector to have been guilty of corruption and malfeasance in public office, will meekly accept her findings and implement her remedial measures. That is not how guilty bureaucrats in society generally respond. The objective of policing State officials to guard against corruption and malfeasance in public office forms part of the constitutional imperative to combat corruption.”
Third, the SCA pointed out that the High Court argument that the findings and remedial action of the public protector were mere recommendations “appears to be more consistent with the language of the Interim Constitution”. It thus criticised the High Court judgment, pointing out that the manner in which it conceived of the powers of the public protector:
“is neither fitting nor effective, denudes the office of the public protector of any meaningful content, and defeats its purpose. The effect of the High Court’s judgment is that, if the organ of State or State official concerned simply ignores the public protector’s remedial measures, it would fall to a private litigant or the public protector herself to institute court proceedings to vindicate her office. 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.”
Lastly, the SCA answered the argument that the public protector is not a judge and that her findings and remedial action can therefore not be binding and enforceable in the same manner than a court order, by noting that “a court is an inaccurate comparator” to use when we consider the powers of the public protector. Instead, it is more appropriate to think of her findings and remedial action as similar to decisions of administrative bodies. It is well settled in our law that until such decisions are set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked.
“It suffices for present purposes to state that if such a principle finds application to the decisions of an administrative functionary then, given the unique position that the public protector occupies in our constitutional order, it must apply with at least equal or perhaps even greater force to the decisions finally arrived at by that institution. After all, the rationale for the principle in the administrative law context (namely, that the proper functioning of a modern State would be considerably compromised if an administrative act could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question), would at least apply as much to the institution of the public protector and to the conclusions contained in her published reports.”
The SCA thus found a middle way between the argument that the finding and remedial action of the public protector is akin to court orders and the argument that they are mere recommendations. Like a decision to award a tender, to grant a permit, or to issue a licence, the decisions (both findings and remedial action) of the public protector have clear legal consequences.
Findings may not be ignored
These findings and remedial action are not recommendations that can be ignored or set aside by invoking the opinion of another person or body. They create legal obligations which have to be fulfilled – unless, of course, a court reviews and sets aside these findings and remedial action. This implies that Parliament does not have the power to replace the findings and remedial action of the public protector or to absolve the person directed to take remedial action from doing so.
Whatever you may think of the judgment (and I suspect how you view the judgment will greatly be influenced by how you feel about the Nkandla matter), it is impossible to deny that the SCA found a clever and elegant answer to a difficult legal problem. It acknowledged that the public protector is not a judge and that her findings and remedial action should not be compared to court orders, while at the same time finding a way of ensuring that one of our most important constitutional watchdogs are not muzzled by insisting that the findings and remedial actions of the public protector are mere recommendations.
As the legal question of whether the finding and remedial action of the public protector are binding and if so how, is a constitutional matter and as the Constitutional Court will consider the matter in a different case in February, the SCA judgment is not the last word on the matter. However, until such time as the Constitutional Court finally put this legal matter to rest, the SCA judgment sets a binding precedent. This means that for the time being, it is not legally permissible for any person or body to ignore the findings or remedial action imposed by the public protector.