Why we differ with the WCape high court's judgment - Thuli Madonsela

PP says her office is preparing to appeal that part of the ruling that deals with the powers of her office

Public Protector to approach court for the review of aspects of the SABC/DA judgement

Media Statement, Friday, 24 October 2014

Public Protector Adv. Thuli Madonsela has noted the judgement delivered by Hon Judge Asthon Schippers in a matter between the South African Broadcasting Corporation and the Democratic Alliance in the Western Cape High Court on Friday with great respect and gratitude.

Public Protector Madonsela notes in particular the brevity and persuasive crafting of the judgement with a view to drawing lessons therefrom. She particularly notes with appreciation the finding that her findings in the matter in question were sound or not irrational.

After a careful examination of the judgement and having no doubt that Hon Judge Schippers applied his mind and did his best, the Public Protector has decided to take the judgement on review with regard to the matter of the constitutional powers of the Public Protector, which is the only matter argued in court by her office, in the case in question. 

She is of the respectful view that the judge's basis for deciding that the Public Protector's decisions are not binding is confusing for the following reasons, which represent her preliminary views:

1) The judgement appears to suggest that different wording in respect of the constitutional mandate of the Public Protector in comparison to traditional Ombudsman institutions makes no difference. The Public Protector had expected the court to identify both parallels and differences between the constitutional and statutory wording regarding the powers of the Public Protector and those of traditional Ombudsman institutions such as the United Kingdom (UK) Parliamentary and Health Service Ombudsman. She would have expected the court to clarify if the unique wording in the following circumstances -in the context of South Africa- makes a difference in the powers of the Public Protector:

a) The Public Protector has the power as regulated by legislation to take appropriate remedial action (section 182(1) (c) of the Constitution);

b) The provision in section 181 of the Constitution saying the Public Protector, Independent Electoral Commission (IEC) and others are independent constitutional bodies whose decisions are subject only to the Constitution and the law;

c) The difference between the wording used for the Public Protector and other Chapter 9 institutions. For example, the Auditor-General is only given power to report whereas the Public Protector is given additional power "to take appropriate remedial action";

d) The fact that sections 6 and 7 of the Public Protector Act expect the Public Protector to make findings and do more than "recommend" to rectify maladministration; and

e) The fact that the Housing Measures Protection Act assigns the Public Protector specific powers to review the decisions of the National Home Builders Registration Council.

The Public Protector would have also expected the court to have clarified if the Supreme Court of Appeal's pronouncement that the Public Protector is more than an Ombudsman has any relevance to powers relating to remedial action when compared to traditional Ombudsman institutions such as the UK Parliamentary and Health Service Ombudsman that derive power from legislation that specifically restricts them to making "recommendations" in a context of Parliamentary supremacy.

Instead, the judgement did the following:

(1) It draws heavily on what courts in the UK have said about the powers of an Ombudsman. It appears to be saying that because the Public Protector is an ombudsman-like institution, its powers are the same as those of the UK Parliamentary and Health Service Ombudsman as determined by the courts in that land. An analogous situation is that of someone saying there's no difference between a Mercedes Benz and a VW Beetle because as long as something is a car, it has the same power as any other car.

(2) The judgement also appears to be suggesting that there is no difference between constitutional, which is the kind of democracy entrenched in the South African Constitution and Parliamentary democracy, which applies in the UK. In this regard the Public Protector would have expected the court to provide clarity regarding section 181(3) applicable to the Public Protector, the IEC and others regarding what is meant by these constitutional bodies being subject only to the Constitution and the law, which has no equivalent in the founding provisions for the UK Parliamentary and Health Service Ombudsman and other Parliamentary and traditional Ombudsman offices.

(3) The judgement appears to be suggesting that an institution's decisions cannot be binding when it is not a court of law. This is confusing because there are institutions that are not courts of law yet their decisions are binding. In this regard, the judgement has serious implications for the decisional powers of bodies such as the IEC, a fellow Chapter 9 institution, and a body such as the Reserve Bank. 

(4) The judgement further appears to be saying that an institution's decisions can only be binding and enforceable if the Constitution or law establishing or giving powers to that institution specifically states that such institution's decisions are binding. Again this appears to be at odds with the import of section 181 if considered beyond the Public Protector with the powers of institutions such as the IEC taken into account. Again the implications for the Reserve Bank and other administrative oversight and regulatory bodies would have no binding powers. This is something that needs clarity.

(5) The judgement appears to be saying since the present Public Protector has said in her court papers in the case in point, she relied principally on source documents then she does not operate like a court of law and consequently her decisions cannot have the same effect as a court if law. This is confusing because the Public Protector's investigative powers are not restricted by the choice made by any individual Public Protector regarding how to investigate any case. The Public Protector has extensive investigative powers, as noted by the Supreme Court of Appeal in the Public Protector vs the Mail and Guardian case.

The only difference is that the Public Protector uses inquisitorial justice processes like courts in Europe, which operate on the basis of civil law as opposed to common law. It is unclear how inquisitorial justice takes away the power to make binding decisions. It should also be noted that it is not true that the Public Protector does not do oral evidence because she does. However, to resolve contradictions in evidence regarding what happened, the Public Protector relies heavily on documentary evidence as public administration principally takes place through paper work.

(6) The judgement further appears to be suggesting that organs of state that the Public Protector makes maladministration findings against have to review the Public Protector's findings and judge the Public Protector and if they find his/her decision to be irrational, they are justified in not complying. The implication is that the organ of state would then tell the Public Protector it won't be complying because her decision was irrational. Would this not be inconsistent with the constitutional provision that the Public Protector and other Chapter 9 institutions are "independent and subject only to the constitution and the law"? Is the interpretation of section 181 in this regard restricted to the Public Protector only and if so, on what basis?

(7) Lastly, the judgement appears to be placing a burden on a Gogo Dlamini, in whose favour the Public Protector finds but the organ of state involved is refusing to implement on grounds of the Public Protector's irrationality as deemed by it to then take the organ of state to court to review the rationality of its own conduct. Is this consistent with a purposive interpretation of the Constitution in so far as the Public Protector being an alternative avenue for accessing justice as envisaged under section 34 of the Constitution?

In the light of the above, Public Protector Madonsela is in the process of approaching her office's lawyers in preparation of a review of the part of the judgement that deals with the Public Protector's powers.

She would like to reiterate her appreciation for the judgment, her profound respect for the judiciary and to clarify that she is pursuing her right to disagree respectfully with the judgement as it has enormous implications for her office, access to justice for disadvantaged persons wronged by organs of state and may have unintended consequences for administrative scrutiny beyond the role and powers of the Public Protector. It is only for this reason that the Public Protector entered the fray in the litigation that culminated in the judgement in question. 

In conclusion, Public Protector Madonsela reiterates her deep gratitude to Judge Schippers and all parties involved for doing their best in providing answers to difficult questions arising from our ground breaking Constitution.

Since this statement represents our preliminary views, a media briefing will follow in due course after we have consulted with our lawyers on specific grounds for review.

Statement issued by Oupa Segalwe, Acting Spokesperson, Public Protector South Africa, October 24 2014

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