South Africa: Office of the Public Protector
Updated December 2009
Note: See also MUSUVA, C 2009 Promoting the Effectiveness of Democracy Protection Institutions in Southern Africa: South Africa’s Public Protector and Human Rights Commission [PDF document], EISA Research report No 41.
The Office of the Public Protector is provided for in Chapter nine of the Constitution of 1996 as a state institution supporting constitutional democracy and came into existence in 1995. Section 181 of the Constitution contains provisions for the independence and impartiality of the office of the Public Protector while Section 182 assigns it its powers and functions. The mandate and powers of the Public Protector are expanded in the Public Protector Act 23 of 1994. The Public Protector has the power to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action. It cannot investigate the judicial functions of courts or the private sector.
The Public Protector is appointed for a non-renewable seven year term by the President on the recommendation of the National Assembly. The resolution recommending the appointment of the Public Protector must enjoy the support of at least 60% of the members of the National Assembly. The Public Protector may be removed only on grounds of misconduct, incapacity or incompetence. The Office reports to parliament through the Portfolio Committee on Justice and Constitutional Development. The Office receives an annual budget, allocated through the Department of Justice and approved by a vote in parliament. Since 2003, the Public Protector has under spent its budget with the exception of 2004.
The Public Protector has a national head office, nine offices in each of the provinces and six regional offices. The Public Protector has a full-time staff of about 188 out of 275 available posts. Concerns have been raised at the high vacancy rate with key posts remaining unfilled for long period, especially given the relatively large number of cases reported to the office and the substantial backlog of cases (Table 2). The time taken to act on complaints appears to depend on the particulars of the case, with responses varying from a few months to a few years.
Table 2: Summary of cases carried forward, new cases received and cases finalised
| Year | From previous year | New cases | Cases finalised | Carried over to next |
|---|---|---|---|---|
| 1999 | 10 884 | 9 085 | 6 993 | 12 976 |
| 2000/01 | 13 326 | 10 442 | 9 649 | 14 120 |
| 2001/02 | 13 427 | 12 174 | 12 202 | 13 399 |
| 2002/03 | 13 399 | 15 674 | 21 705 | 7 368 |
| 2003/04 | 7 520 | 17 295 | 15 946 | 8 869 |
| 2004/05 | 9 292 | 22 350 | 7 539 | 14 103 |
| 2005/06 | 14 103 | 17 415 | 17 619 | 13 899 |
Table notes
- There appear to be discrepancies between cases carried forward from a previous year and cases carried over to a following year.
- Source: Parliament of the Republic of South Africa 2007.
A number of special reports have been submitted on topics such as nepotism in government, financial irregularities, and irregularities in the granting of university degrees. Investigations also involve conflict of interest, corruption and financial misconduct by public officials. Despite the fact that the Public Protector has no express human rights mandate, the institution considers the violation of human rights as by public authorities to fall within the concept of "improper prejudice" suffered by a person. In this manner, the Public Protector can enforce constitutional human rights indirectly (Reif 2004 ).
Generally, appointments to the Public Protector's office have supported the independence of the institution although the relationship between the Public Protector and the ruling party has, in certain instances been questioned. The current Public Protector, Lawrence Mushwana, was appointed from the African National Congress (ANC) parliamentary caucus. This, along with the fact that certain high profile investigations have appeared to favour the ANC, has led to perceptions of favouritism. Critics often refer to what is commonly referred to as the "oilgate scandal" as an example. In 2004 it emerged in the media that PetroSA, a major public entity involved in trading crude oil had in 2003, advanced 15 million rand to a privately owned black economic empowerment company, Imvume Management, contracted to provide oil condensate for its operations. Imvume, instead of paying its supplier, diverted the sum of 11 million rand to the ruling party - the ANC. Subsequently, PetroSA doubled the payment to Imvume's supplier, resulting in a further loss of public funds. Following accusations of collusion between PetroSA and Imvume, opposition parties asked the Public Protector to investigate. Controversially, the Public Protector ruled that there was no misconduct or maladministration by PetroSA or any other public official, and that the 15 million rand lost its designation as public money when it was paid by PetroSA, and was thus beyond his jurisdiction (Transparency International 2005).
The office of the Public Protector has conducted own-initiative investigations, though it has been suggested that the office should be more proactive in this regard. The Public Protector may not impose penalties on offenders, but can, in terms of the constitution, take appropriate remedial action. Such action is usually in the form of recommendations. The extent to which government complies with the findings of the Public Protector is a moot point. The cases outlined in the annual report, however do suggest a level of compliance.
Reports are usually submitted to the people involved in a particular complaint and are available to the public only on request. General and high-profiles cases, however, are published on the Public Protector's website and in its annual report. Reports are available as soon as they are completed through general access, though publication on the internet or reports to the legislature may take longer. Despite there being no charge for reports, general access depends usually on the availability of electronic and other information sources.
It is very important, though rather unusual, that the Constitution provides that the Public Protector must be accessible to all persons and communities, and that the Public Protector should ensure transparency and openness especially in reporting, unless exceptional circumstances as determined by national legislation require otherwise (Parliament of the Republic of South Africa 2007) . However, much of the public has never heard of the Public Protector despite its numerous offices and public outreach programmes. The relationship with civil society is weak, informal and intermittent (Parliament of the Republic of South Africa 2007) . In spite of this, the Public Protector was considered a strong oversight body by the 2006 Global Integrity Index which scored the institution as "very strong" (the Global Integrity Index assesses the existence, effectiveness and citizen access to key national anti-corruption mechanisms in a country).
Official web site
Office of the Public Protector: http://www.publicprotector.org/ [opens new window] (accessed 8 Mar 2010).
References
CONSTITUTION OF THE REPUBLIC OF SA 1996, [www] http://www.info.gov.za/documents/constitution/1996/index.htm [opens new window, incorporates all amendments until 13th Amendment(2007)] Act No. 108 of 1996; 14-16 Amendments available at http://www.info.gov.za/view/DynamicAction?pageid=612 [opens new window] (accessed 9 Mar 2010); approved by Constitutional Court December 4, 1996; took effect February 4, 1997; amended 1996, 1997, 1998, 1999, 2001, 2002, 2003 (accessed 26 Feb 2010).
PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA 2007 Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions. A report to the National Assembly of the Parliament of South Africa, Cape Town.
REIF, L 2004 The Ombudsman, Good Governance and the International Human Rights System Martinus Nijhoff Publishers.
TRANSPARENCY INTERNATIONAL 2005 "National Integrity Systems Country Study Report-South Africa".