The Powers of the Office of the Public Protector and the South African Human Rights Commission: A Critical Analysis of SABC v DA and EFF v Speaker of the National Assembly 2016 3 SA 580 (CC)

Keywords: Public Protector, findings and remedial action, state capture, Chapter 9 institutions, South African Human Rights Commission

Abstract

This article assesses South African Broadcasting Corporation v Democratic Alliance 2016 2 SA 522 (SCA) and Economic Freedom Fighters v Speaker of the National Assembly 2016 3 SA 580 (CC) and to a lesser extent the state of capture judgments. All of these deal with whether the findings and remedial action of the Public Protector (PP) are binding in certain circumstances. The judgments significantly change the impact and effect of findings made by the Office of the Public Protector (OPP) and have important consequences and lessons for other Chapter 9 institutions. It is apparent from these judgments that there was a concerted attempt to undermine the OPP by systematically disrespecting and not implementing the remedial action. It is argued in the article that egregious violations by public officials contributed to the courts' rulings that the findings of the PP may be binding. The article also explicitly records the unlawful conduct of public officials and the resultant cost and consequence in the hope that conduct of this nature is not repeated. It also specifically notes that the major findings in the Nkandla, SABC and State of Capture reports have withstood judicial scrutiny. Regrettably, this exalted standard has not always been replicated in the reports of the present PP. Finally, the article submits, on the basis of these judgments that the findings of the South African Human Rights Commission should in certain circumstances be binding.

Author Biographies

Karthy Govender, South African Law Reform Commission

Commissioner of the South African Law Reform Commission

Paul Swanepoel, University of KwaZulu-Natal

There are two contributors:

Karthy Govender. LLB (London University) LLB (Natal University) LLM (Michigan University). Retired Professor, School of Law, Howard College, University of KwaZulu-Natal, Durban. Email: kgovender@ukzn.ac.za.

Paul Swanepoel. MA (Hons) (St Andrews University) LLB (Natal University) MSc PhD (Edinburgh University). Lecturer, School of Law, Howard College, University of KwaZulu-Natal, Durban.

References

BIBLIOGRAPHY

Literature

Govender K "Power and Constraints in the Constitution of the Republic of South Africa 1996" 2013 AHRLJ 82-102

Hoexter C Administrative Law in South Africa (Juta Cape Town 2012)

Klaaren C "Structures of Government in the 1996 South African Constitution: Putting Democracy Back into Human Rights" 1997 SAJHR 3- 27

Murray C "The Human Rights Commission et al: What is the Role of South Africa's Chapter 9 Institutions?" 2006 PELJ 1-26

Public Protector South Africa Report No 23 of 2013/2014 - "When Governance and Ethics Fail": A Report on an Investigation into Allegations of Maladministration, Systemic Corporate Governance Deficiencies, Abuse of Power and the Irregular Appointment of Mr Hlaudi Motsoeneng by the South African Broadcasting Corporation (SABC) (Office of the Public Protector Pretoria 2014)

SAHRC Final Investigative Report
South African Human Rights Commission Final Investigative Report (Complaint File Reference Number KZ/1516/0451): Dr Imraan Keeka, Democratic Alliance, MPLV Addington Hospital, Inkosi Albert Luthuli Central Hospital, Department of Health, KwaZulu-Natal and MEC: Department of Health, KwaZulu-Natal (SAHRC Pretoria Date unknown)

Thipanyane T "Strengthening Constitutional Democracy: Progress and Challenges of the South African Human Rights Commission and Public Protector" 2015/2016 NY L Sch L Rev 125-121

Case law

ABSA Bank Limited v Public Protector 2018 2 All SA 1 (GP)

Certification of the Constitution of the RSA 1996 4 SA 744 (CC)

Democratic Alliance v South African Broadcasting Corporation Limited 2015 1 SA 551 (WCC)

Democratic Alliance v South African Broadcasting Corporation Limited 2016 3 SA 468 (WCC)

Democratic Alliance v South African Broadcasting Corporation Limited; Democratic Alliance v Motsoeneng 2017 2 BLLR 153 (WCC)

Economic Freedom Fighters v Speaker of the National Assembly 2016 3 SA 580 (CC)
IEC v Langerberg Municipality 2001 3 SA 925 (CC)

MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd 2014 3 SA 481 (CC)
Minister of Finance v Van Heerden 2004 6 SA 121 (CC)

Minister of Home Affairs v Public Protector of the Republic of South Africa
2018 3 SA 380 (SCA)

Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 6 SA 222 (SCA)

Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa 2000 2 SA 674 (C)

President of the Republic of South Africa v Office of the Public Protector
2018 2 SA 100 (GP)

Public Protector v South African Reserve Bank 2019 6 SA 253 (CC)

South African Association of Personal Injury Lawyers v Heath 2001 1 SA 833 (CC).

South African Broadcasting Corporation v Democratic Alliance 2016 2 SA 522 (SCA)
The Public Protector v Mail and Guardian Ltd 2011 4 SA 420 (SCA)

Legislation

Commission for Gender Equality Act 39 of 1996

Constitution of the Republic of South Africa 108 of 1996

Interim Constitution of the Republic of South Africa Act 200 of 1993

Labour Relations Act 66 of 1995

Promotion of Administrative Justice Act 3 of 2000

Public Protector Act 23 of 1994

Special Investigation Units and Special Tribunals Act 74 of 1996

Internet sources

Selfe J 2018 South Africa: SABC - Motsoeneng's SCA Petition Waste of the Court's Time for which He should Pay http://www.politicsweb.co.za/politics/motsoenengs-sca-petition-a-waste-of- time-for-which accessed 14 April 2019

Sibanda OS 2019 The Public Protector’s Call to be accorded the Status of a Judge is Nonsensical - to a Certain Degree https://www.dailymaverick.co.za/article/2019-08-07-the-public-protectors- call-to-be-accorded-the-status-of-a-judge-is-nonsensical-to-a-certain- degree/ accessed 12 January 2020
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Published
2020-04-17
Section
Case Notes