Reviewing a public protector’s report

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Many targets of investigation by the public protector — for example, Tina Joemat-Pettersson in her handling of the state’s fishing vessels and Pansy Tlakula in her actions at the Independent Electoral Commission — demand that the courts “review” her findings. What is the role of a court in relation to the public protector? Is a “review” different to an appeal? Could a court make a ruling affecting the substance of, or the process behind, such a report? — Watching from the Sidelines Our constitution attempts to strike a delicate balance between the judiciary’s oversight function and the independence of Chapter 9 institutions such as the public protector. These institutions are created to support our constitutional democracy and must not be inhibited in their functions. The public protector is accountable to the National Assembly, but, at the same time, the courts play a critical role in measuring the conduct of the public protector against the constitution and the rule of law.

Once a report of the public protector is released, it is possible to challenge it through a judicial review in the high court.

In review proceedings, the court’s function is limited to considering only the method or procedure adopted in arriving at the decision. If, for example, the decision was taken in a procedurally unfair manner or there was bias, the court may set aside the decision and refer the matter back to the original decision-maker. It will substitute its own decisions only in exceptional circumstances.

On the other hand, in an appeal, the court looks at the substantive findings to determine whether there has been an error of law or fact. It may replace those findings with its own.

In the case of a public protector’s report, a high court review would not involve a reconsideration of the evidence before the public protector or a rewriting of the report, but rather would look at whether the public protector has met its obligations under the Public Protector Act and the constitution.

In 2011, the Mail & Guardian brought review proceedings to set aside the public protector’s report on the “Oilgate” scandal. The report had concluded that there had been no impropriety by any of the parties.

The Supreme Court of Appeal was careful to explain that it was not called upon to make findings on the complaints before the public protector or on the veracity or authenticity of material that might have been relevant to the inquiry. Instead, the court looked only at the adequacy or otherwise of the investigation. The court held that there was no proper investigation into the substance of the complaints and the public protector had not approached the complaint with an open and inquiring mind.

The courts will set aside a report, if necessary, but they are reluctant to interfere in the discretion of the public protector. They have refused to state definitively what a “proper investigation” would entail or give specific directions on how to investigate. This is because a proper investigation might take many different forms and it is for the public protector to decide what is appropriate in each case.

The role of the court in review proceedings is therefore vital but sensitive. There remains some legal debate about the exact grounds on which a person can seek to review and set aside a report. However, it remains open to any person to approach the high court if they are dissatisfied with the manner in which the public protector has gone about its functions.