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Public Protector Thuli Madonsela must be bowled over by judgment

SPRING is always a time for new life. This spring has been good for South African constitutionalists, which should mean everyone, but sadly doesn’t.

As long ago as 1790, Thomas Jefferson wrote: “The ground of liberty is to be gained by inches. It takes time to persuade men to do even what is for their own good.”

These words resonate as grateful observers take note of developments in civil society, in court and on the cricket fields of India this spring: a veritable hat trick for rigour, patriotism and the rule of law.

The first delivery was in celebration of the 84th birthday of our beloved Archbishop Emeritus Desmond Tutu, patron of Accountability Now and unofficial national treasure. Public Protector Thuli Madonsela delivered the archbishop’s annual peace lecture at the University of the Western Cape last week. Bearing the challenging title, “Democracy and Peace: what’s law got to do with it?”, her theme that the rule of law is essential for any sustainable form of democracy and peace set the stage for developments to come.

The second ball of the hat trick was bowled by the five unanimous judges of the Supreme Court of Appeal in their 46-page judgment in the matter concerning the chequered career of South African Broadcasting Corporation (SABC) chief operating officer Hlaudi Motsoeneng. The judgment will echo down the years whenever the progress of the rule of law in SA is under consideration. The case will mark a turning point in the tide of affairs of state in SA.

The third ball of the hat trick was delivered by the youngest member of the South African cricket team, the Proteas, in the first spring one-day international against India. Kagiso Rabada, of the St Stithian’s matric class of 2013, was given the onerous task of defending a narrow lead in the final over of the match. Bowling to the experienced, in-form captain of India, Mahendra Singh Dhoni, Rabada was required to maintain a steady standard and clear head in nerve-racking circumstances. In the final over, he took wickets with his fourth and fifth deliveries, finding himself on a hat trick for the second time in his short international cricket career, with one ball to bowl. If his final ball were to be hit for six, the scores would be level. Concentrating on the task at hand, he kept a cool head on his young shoulders and successfully prevented the six being struck. He did so in preference to going for the third consecutive wicket. A famous nail-biting victory was won by the narrowest of margins due to the rigour with which the young hero stuck to his task.

In their own way, both Madonsela in her speech and the Supreme Court of Appeal in its judgment were no less heroic than Rabada. Madonsela’s speech places the rule of law at the front of the stove of our nascent constitutional democracy, which is where it belongs, but does not always find itself. The notion that the rule of men and women, that much vaunted majority, trumps the rule of law and the supremacy of the Constitution was dealt a mortal blow in the cool and clear analysis presented by Madonsela.

Her grace under pressure, both during the lecture and in general, was rewarded the following morning, when the judgment in the SABC matter was handed down. As is always the case in litigation that is not settled, there were winners and losers in the matter concerning the appointment of, and failure to take disciplinary measures against, Motsoeneng.

In the litigation itself, the Democratic Alliance (DA), Corruption Watch and the public protector emerged as clear winners of the dispute. But the ramifications of the judgment have a far wider ambit. The Constitution emerges as a beneficiary of the judgment because its meaning as regards the powers of the Office of the Public Protector has been spelt out for the guidance of those who complain to the public protector, those against whom complaints are lodged, and for the public protector’s staff as they go about their daily business of investigating the complaints of maladministration that are referred to them, or the instances of maladministration that they take up of their own accord.

The constitutional power of the public protector to “take appropriate remedial action” after investigating and reporting on a complaint is of binding effect. The remedy available to those aggrieved by the findings of the public protector is to take them on judicial review, not to set up some or other parallel process that the law does not recognise and the Constitution does not countenance. It is so that the unsuccessful litigants have indicated that they wish to take the matter further in the Constitutional Court. It is doubtful that this will ever come to fruition. There are two reasons to be doubtful: first, the appealability of the decision is questionable as it does not involve the granting of any final relief against any party bound by its orders. Second, even if the decision is regarded as appealable, it is unlikely that the matter will be ripe for hearing in the Constitutional Court before the Nkandla matter, in which the Economic Freedom Fighters (joined by the DA) seek direct access to the highest court, is heard in February next year in the Constitutional Court. As the same issue of principle is present in both matters, namely the scope and effect of the powers of the public protector, there will probably be a final determination of the arguments on that issue long before the SABC matter is ready for hearing.

One of the indirect winners in the matter is the Constitutional Court itself. The judges will now have the benefit of a closely reasoned and carefully considered judgment on the scope and effect of the powers of the public protector that will no doubt be relied upon heavily in argument before it in the “pay back the money” case.

The matter revolves around questions about whether those dissatisfied with the findings in the “Secure in Comfort” report of the public protector were obliged to take the findings on review, or whether it is somehow permissible for them to set up parallel processes to second-guess the public protector in ways that are palpably not performed “without fear, favour or prejudice”, the standard by which the public protector is constitutionally bound.

In the SABC matter, this parallel procedure was resorted to by briefing Mchunu Attorneys to prepare a report that has been kept secret without any legal justification. In the Nkandla matter, Police Minister Nathi Nhleko rather more openly sought to justify the position of the man at whose pleasure he serves in the cabinet, found by the public protector to have unduly benefited from the security enhancements at Nkandla, which were paid for with public money.

Those who regard the findings of the public protector as mere recommendations should consider the plain wording of the Constitution, which stipulates that “the public protector has the power … to take appropriate remedial action”. As Jefferson rightly said in 1790: “It takes time to persuade men to do even what is for their own good.”

Hoffman is a director of Accountability Now

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