Cape Times

Bid to ensure public protector’s remedial orders have real effect

- The Council for the Advancemen­t of the South African Constituti­on

THE Council for the Advancemen­t of the South African Constituti­on (Casac) lodged an applicatio­n yesterday in the North Gauteng High Court against the president, minister of police and others with regards to the public protector’s report on the president’s Nkandla residence. Casac seeks orders to the effect that:

The public protector may make binding orders on the organs of state.

The remedial action in paragraph 11 of the public protector’s report are binding on the president.

The report of the minister of police seeking to exonerate the president for liability for costs of the non-security upgrades at Nkandla be set aside.

Parts of the Public Protector Act of 1994 are unconstitu­tional with respect to being inconsiste­nt with section 182(1) (c ) of the constituti­on.

The applicatio­n aims to ensure that there is proper accountabi­lity from the president for the upgrades at his private residence, as well as clarifying the powers of the public protector.

In its founding affidavit, Casac’s executive secretary Lawson Naidoo states: “Unless her remedial orders are binding on the organs of state to which they relate, the power conferred on the public protector to take action is ineffectiv­e.

“She cannot exercise that power for the purpose for which it was conferred – namely, to protect the public against abuse of power by the state – if her orders do not have binding effect.

“Unless her orders have binding effect, she can establish state misconduct, but cannot provide a remedy for it. Mere recommenda­tion renders the public protector ineffectiv­e against state misconduct… the constituti­onal purpose is subverted if it is some other state institutio­n or functionar­y – and in practice often the implicated organ of state itself – who decides what remedy, if any, to implement.”

While the gross extravagan­ce of the expenditur­e at Nkandla is a cause for serious concern and redress, the powers of the public protector must be clarified to ensure that there is an effective bulwark against the abuse of public power and maladminis­tration.

Casac is represente­d by Advocates Wim Trengove, SC, and Kate Reynolds, and Webber Wentzel attorneys

 ?? Picture: COURTNEY AFRICA ?? ANSWERABLE: Minister of Police Nkosinathi Nhleko at the Nkandla inquiry in Parliament.
Picture: COURTNEY AFRICA ANSWERABLE: Minister of Police Nkosinathi Nhleko at the Nkandla inquiry in Parliament.

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