PUBLIC PROTECTOR'S COURT CHALLENGE AND ALLEGED LACK OF FUNDS
28 October 2014
The Office of the ANC Chief Whip notes the decision of the Public Protector to challenge certain aspects of the judgment of the Western Cape High Court in a case between the SABC and DA. The judgment asserted that although the remedial measures of the Public Protector cannot be ignored, they are not binding, enforceable and are not similar to court judgments.
The judgment also stated that the role of the Office of the Public Protector is similar to that of an Ombudsman, and therefore may not enjoy the status of a Court of Law. Had the Constitution intended that the Public Protector should have the status of a Court, it would have so provided. The Public Protector herself had often equated her office and its reports to a court and its judgments.
We had hoped that the judgment would be accepted by both the Public Protector and the opposition as the authoritative legal clarification of the role, functions and powers of the Public Protector. The Public Protector has the right, which we respect, to challenge the judgement in the Supreme Court of Appeals if she believes it would potentially frustrate or impede the constitutional role of her office.
However, it is our view that - far from rendering the Office of the Public Protector ineffective - the judgment is intended to strengthen its statutory function of fighting corruption and malfeasance, while subservient to the law and constitutional provisions under which it functions.
As the judge correctly pointed out, the fact that the institution of the Public Protector is not equal to a Court and its reports are not as binding and enforceable as court judgments, does not make the institution toothless or ineffective. We are therefore unconvinced that a different court would arrive at a view different from this legally and constitutionally sound assertion.
The kind of relief the Public Protector essentially seeks is for a different court to accord a Chapter 9 institution the status of a court of law. It is highly unlikely that this would happen. We therefore do not believe that the decision to take the matter for review is in the interest of access to justice for "disadvantaged persons wronged by organs of state" or "administrative scrutiny", as claimed by the Public Protector.
It is curious that an institution that recently complained to Parliament of dire financial constraints would dedicate huge funds pursuing a view that is legally and constitutionally weak to succeed in court. The complaint about the alleged funding inadequacy was made despite the institution's budget increasing significantly from R86.5m to R217.6m between 2009/10 and 2014/15 financial years.
The substantial increases in transfers were to allow for growing investigative capacity by the Office of the Public Protector, demonstrating yet again a continued support for this institution. These sizable increases happened at the time when most organs of the state had to take budget cuts. For instance, during the same period that the Public Protector's budget almost tripled, the Human Rights Commission only increased from R74.4m to R128.1 million, which is virtually half the budget of the Public Protector.
In spite of these enormous budget increases, the Public Protector is pleading poverty. We welcome the process initiated by the justice & correctional services committee to engage various Chapter 9 institutions to look at the issue of duplication of functions, overlaps and forum shopping to ensure that they utilise allocated funds appropriately.
In our view, rather than waste funds on a case with little chances of success, she should be approaching Parliament - as a lawmaker - to motivate why her Office should have powers beyond what those currently provided in the Public Protector Act and the constitution.
Statement issued by the Office of the ANC Chief Whip, October 28 2014
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