An Analysis of the Public Protector's Investigatory and Decision-Making Procedural Powers

Keywords: Public Protector Public Protector, Draft Rules, ; investigatory powers, decision-making, procedural powers, hearing proceedings, witness procedural protections, special tribunal

Abstract

This article critically analyses the Draft Rules to the Public Protector Act 23 of 1994 and examines the efficacy of the Public Protector’s decision-making procedural powers. Several procedural lacunae are identified. In particular the article evaluates the procedural distinction between an investigation and a hearing as defined in the Draft Rules and the Act. It is unclear from a reading of the Draft Rules whether a hearing is simply part of the Public Protector’s investigatory process or whether it functions as a separate quasi-judicial decision-making process in its own right. A significant lacuna is the failure to specify the procedural protections available to an implicated person or a witness in an investigation or a hearing. A primary problem with the Draft Rules is the very broad procedural powers awarded to the Public Protector which are open to procedural abuse. The article suggests a number of amendments to the Draft Rules which should be modelled on the procedural methodology applied in the Special Investigating Units and Special Tribunals Act 74 of 1996. Moreover, the article suggests that the decision-making powers of the Public Protector should be divided between the Public Protector and an independent and temporarily appointed adjudicator.

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Author Biography

Charles De Matos Ala, University of the Witwatersrand

University of the Witwatersrand, School of Law. Lecturer.

References

Bibliography

Literature

Oxford Dictionary of English
Oxford Dictionary of English 3rd ed (Oxford University Press New York 2010)

Venter 2017 TSAR
Venter R "The Executive, the Public Protector and the Legislature: The Lion, the Witch and the Wardrobe" 2017 TSAR 176-189

Wolf 2017 PELJ
Wolf L "The Remedial Action of the 'State Capture Report' in Perspective" 2017 PELJ 1-46

Case law
Democratic Alliance v President of the Republic of South Africa 2013 1 SA 248 (CC)
Democratic Alliance v South African Broadcasting Corporation Limited 2015 1 SA 551 (WCC)
Economic Freedom Fighters v Speaker, National Assembly 2016 3 SA 580 (CC)
Falk v National Director of Public Prosecutions 2012 1 SACR 265 (CC)
President of the Republic of South Africa v Office of the Public Protector (GP) (unreported) case number 91139/2016 of 13 December 2017
Public Protector v Mail & Guardian 2011 4 SA 420 (SCA)
South African Broadcasting Corporation v Democratic Alliance 2016 2 SA 522 (SCA)
South African Reserve Bank v Public Protector 2017 6 SA 198 (GP

Legislation
Constitution of the Republic of South Africa, 1996
Executive Members' Ethics Act 82 of 1998
Housing Protection Measures Act 95 of 1998
Lotteries Act 57 of 1997
National Environmental Management Act 107 of 1998
Prevention and Combating of Corrupt Activities Act 12 of 2004
Promotion of Access to Information Act 1 of 2000
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
Protected Disclosure Act 26 of 2000
Protection of Personal Information Act 4 of 2013
Public Finance Management Act 1 of 1999
Public Protector Act 23 of 1994
Public Services Act 103 of 1994
Special Investigating Units and Special Tribunals Act 74 of 1996

Government publications
Gen N 1085 in GG 33807 of 29 November 2010 (Draft Rules Relating to Investigations by the Public Protector and Incidental Matters)
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Published
2019-06-06
Section
Articles