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)

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.