Court will clarify Thuli’s legal limits
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Dear Corruption Watch,
Both the DA and the ANC claimed victory in respect of the court’s ruling about whether the public protector’s recommendations are “binding”. Thuli Madonsela has asked for a judicial review of the ruling. What are the implications of this? — Regards, Confused
Dear Confused
It is important to understand the meaning of the term “binding” in the context of the public protector’s powers. In this context the term means that the public protector’s findings and recommendations must be obeyed and implemented unless a court sets them aside.
For example, if the public protector’s finding that President Jacob Zuma unlawfully benefited from the upgrades to Nkandla and her recommendation that he should pay for a portion of those upgrades are understood to be binding, the president is obliged to comply with her office’s recommendations, unless the Presidency can persuade a court to set them aside.
In the recent case, the public protector had launched an investigation into the affairs of the SABC. Among the findings were that chief operating office Hlaudi Motsoeneng’s appointment was irregular, that the SABC board acted improperly in allowing him to occupy the position without the requisite qualifications, and that the qualifications for the position had been improperly tailored to suit him.
The public protector also found that Motsoeneng had fraudulently misrepresented his qualifications to the SABC’s board and that he had unlawfully engineered a 64% increase of his own salary. The public protector recommended that the SABC take disciplinary action against Motsoeneng, and that all fruitless and wasteful expenditure incurred by the SABC as a result of his salary increases be recovered from him.
After the release of the public protector’s report, the DA brought an urgent application before the High Court in Cape Town seeking Motsoeneng’s immediate suspension pending the finalisation of disciplinary proceedings.
The DA was successful. The court ordered the SABC to institute disciplinary proceedings against Motsoeneng and ordered that he be suspended pending those proceedings.
The ANC welcomed the court’s ruling for a different reason. The court in its judgment held that the findings and recommendations of the public protector are not binding.
The court concluded that section 182 of the constitution, which deals with the powers of the public protector, does not expressly provide that her office’s findings and recommendations are binding and enforceable in the same way court orders are.
It held that her office’s powers are limited to taking steps to redress improper conduct — such as making recommendations of the kind contained in her report on the SABC — but that these findings and recommendations do not carry the force of law.
The ANC claims that this vindicates the position it has taken in relation to the Nkandla saga. You may recall that, after the release of the public protector’s Nkandla report, the Presidency claimed that Zuma is not obliged as a matter of law to follow the public protector’s recommendations.
The public protector has sought to appeal against the court’s findings as regards her office’s powers and it remains to be seen what the Supreme Court of Appeal or the Constitutional Court will make of the matter.