On 8 October, 2015, the Supreme Court of Appeal (“SCA”) handed down a significant judgment relating to the powers of the Public Protector.
The judgment was in an appeal of the SABC, the Minister of Communications and Hlaudi Motsoeneng, the Chief Operating Officer of the SABC, against the decision of Western Cape High Court Judge Ashton Schippers to suspend Mr Motsoeneng.
The central issue addressed in the SCA judgment is whether or not recommendations by the Public Protector have to be implemented.
Government took the view that Public Protector Thuli Madonsela’s recommendations are not binding and that government could decide whether to heed or ignore these.
The same issue will be considered by the Constitutional Court when it decides on the application by the Economic Freedom Fighters to force President Jacob Zuma to comply with the recommendation by the Public Protector that he should repay the public funds spent on his Nkandla homestead.
The SCA decision will likely be further appealed to the Constitutional Court by the SABC and the Minister of Communications.
The SCA delivered a powerful judgment in support of the office of the Public Protector, a Chapter 9 institution. The court held that, as the primary watchdog of government, the Public Protector should not be muzzled. Her office was given teeth, and those teeth should not be blunted. When she makes recommendations, the recommendations have to be implemented. If her recommendations are ignored, it denudes her office of all power.
The facts are that when the Public Protector's report was released, the SABC instructed its own lawyers, who had represented the public broadcaster during the Public Protector’s investigation, to “review” her findings. Not surprisingly, Mchunu Attorneys, the SABC’s lawyers, concluded that the Public Protector had erred in her findings and recommendations. The Minister of Communications, Faith Muthambi, chose to accept those findings and recommendations rather than the findings and recommendations of the Public Protector.
The SCA held that an institution such as the SABC cannot, if it dislikes the Public Protector’s findings and recommendations, conduct a parallel process to replace the Public Protector’s investigation, findings and recommendations.
The SCA held that only a court can review the findings and recommendations of the Public Protector. Absent a successful review of her findings and recommendations, the court held that the recommendations of the Public Protector have to be implemented.
The court pointed out that in the course of her investigation, parties are entitled to be represented before the Public Protector. They have extensive remedies available to them during her investigation, and they are entitled, once her preliminary report is furnished to them, to take issue with her. Ultimately, once her final report is published, an aggrieved party may take her findings on review.
These processes cannot be circumvented.
In the case of Mr Motsoeneng, the Minister addressed only one finding of the Public Protector in the court papers, namely Mr Motsoeneng’s initial job application to the SABC when he fraudulently suggested that he had a matric certificate. Mr Motsoeneng's explanation to the Public Protector in this regard was quite unconvincing. The Minister was not even prepared to reveal on what basis Mchunu Attorneys disagreed with the Public Protector's findings and recommendations. The Minister also completely disregarded the pointed criticism of the Public Protector regarding the promotion of Mr Motsoeneng over the years, the flawed process followed in his most recent permanent appointment, his exorbitant salary increases and those of others, his appointment of a new CFO, and the termination of the employment of others presumed to be opposed to him.
What the judgment means for other Public Protector investigations
The judgment not only has far-reaching consequences for the State, but it also applies to any other entity investigated by the Public Protector. If you are summonsed to testify, make sure to avail yourself of all the opportunities provided in the Public Protector Act during the investigation stage to tell your side of the story. A failure to do so severely limits your rights on review. Conversely, if the Public Protector ignores evidence, or makes the wrong findings or recommendations, you can ask the high court to review and set aside her decisions.
The mechanisms available include the following:
- You are entitled to see the evidence before the Public Protector to refresh your memory.
- If you are implicated by the evidence, or if an adverse finding could be made against you, the Public Protector has to afford you an opportunity to respond.
- You may question any other witnesses.
- Once you have testified, you are entitled to interrogate any evidence subsequently obtained by the Public Protector.
- You can comment on the findings and recommendations in the Public Protector’s preliminary report before it is published.
All eyes now turn to the Constitutional Court. If the judgment of the SCA is upheld or confirmed by the Constitutional Court in the Nkandla case, the strategy to shield President Zuma against the Public Protector's findings and recommendations will fail and he will have to “pay back the money".