Public protector off base

The remedial action proposed by the public protector directing Parliament to amend section 224 of the Constitution is likely to fail and will most probably result in another unwelcome legal bill for taxpayers.

The purpose of the remedial action contemplates a change in the primary objective of the Reserve Bank from protecting the value of the currency to a much more seemingly inclusive socioeconomic-based institution that ensures that the socioeconomic wellbeing of the citizens is protected.

While the public protector may have had good intentions, her remedial action encroaches on the established doctrine of separation of powers provided for in the Constitution. It appears to want to dictate the monetary policy to a democratically elected government, thus undermining its functional independence.

The remedial action also undermines the institutional independence of the Reserve Bank. The public protector is no better placed than the Bank or any person on the effective tools to manage the economy or currency.

The Public Protector Act does not confer a power or a remedy on the public protector to propose legislative or economic policy changes. Even if the act were to confer such a power, such a clause is likely to be found to be unconstitutional as it would encroach upon the functional independence of Parliament and the executive. A public functionary cannot act outside the scope of the powers prescribed in a statute as such conduct would be beyond the powers of that functionary and thus susceptible to being set aside by the courts.

Maphanga Maseko Johannesburg