18 March 2014
As Public Protector Thuli Madonsela prepares to release a final report on an investigation into allegations of maladministration in relation to President Jacob Zuma’s residence in Nkandla, KwaZulu-Natal, we take a look at the office of the Public Protector, how it works and what it investigates.
What is the Public Protector?
The Public Protector was set up in terms of South Africa’s Constitution to investigate complaints against state agencies or officials. It is one of the country’s “Chapter Nine institutions”, established after the Constitution came into effect in February 1997 in order to safeguard human rights and democracy. Others include the SA Human Rights Commission, the Commission for Gender Equality, and the Auditor-General.
With a role similar to that of the “ombudsman” in other democracies, South Africa’s more descriptively named Public Protector is a state institution that has the power to investigate alleged or suspected government misconduct, to issue reports and recommend remedial action.
The Public Protector is subject only to the Constitution and the law and is independent of government and any political party. Anyone can complain to the Public Protector, and no person or organ of state may interfere with the functioning of its office. It cannot, however, investigate the judicial functions of courts or the private sector.
The Public Protector has been described as a referee, tasked with looking at all sides of a problem. If the complaint is justified, a solution is put forward, which may include recommending changes to the system.
The Public Protector can also report a matter to Parliament, which will then debate the matter and see to it that the Protector’s recommendations are followed.
On average, the office of the Public Protector receives about 15 000 complaints a year. It takes from a couple hours to three months to resolve a single case, depending on its nature.
Who is the Public Protector?
The Public Protector is appointed by the President on the recommendation of the National Assembly in terms of the Constitution for a non-renewable period of seven years.
Advocate Thulisile Madonsela is South Africa’s third Public Protector. She was appointed by President Zuma in 2009, after being recommended for the position by a special parliamentary committee. “She will need to ensure that this office continues to be accessible to ordinary citizens and undertakes its work without fear or favour,” Zuma said at the time of her appointment.
Madonsela took over from Advocate Lawrence Mushwana, who is now the chair of the Human Rights Commission. South Africa’s first Public Protector was Advocate Selby Baqwa, who served from 1995 to 2002. He is now a High Court judge.
What does the Public Protector investigate?
The Public Protector investigates alleged misconduct involving the state. This includes public officials at all levels, from central and provincial government to state departments and local authorities.
Some notable decisions by South Africa’s Public Protector include:
- Bheki Cele was fired as South Africa’s police chief in 2011 after an inquiry into allegations of misconduct in relation to the procurement of office headquarters for the SA Police Service. The Public Protector’s report found that the lease agreements were unlawful, invalid and “fatally flawed”.
- In 2006, the Public Protector cleared then Deputy President Phumzile Mlambo-Ngcuka after she used an air force plane to fly with her family and friends to the United Arab Emirates for a holiday. “It cannot be found that the deputy president acted improperly or that she failed to act in good faith,” the Public Protector said in a report at the time. “She was entitled, as anyone else in her similar position and status, to take her family, a friend and the children of her private secretary with her to the UAE and no one therefore benefited improperly from the trip.”
- Following an investigation in 2004, 40 Members of Parliament were found to have illegally used parliamentary travel vouchers worth R18-million for their personal use.
- Also in 2004, an investigation into claims that Ekurhuleni metro police chief Robert McBride was unsuitable for his post found that the appointment was proper, given that then national police commissioner Jackie Selebi had “waived the requirements that McBride had to be a member of the Metro police, and in respect of training”.