Public Protector’s powers

In Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11, the Constitutional Court considered, amongst other things, the nature and extent of the Public Protector’s powers.

Pursuant to several complaints lodged with regard to security upgrades made at President’s private residence, the Public Protector launched an extensive investigation. This culminated in the finding that several improvements were non-security features and amounted to undue benefit or unlawful enrichment to the President and his family. Accordingly, the Public Protector implemented the constitutional powers available to her and required the President to determine the reasonable cost of the non-security features, pay a reasonable percentage of the cost thereof, reprimand the Ministers involved, and report to the National Assembly on his actions.

The National Assembly set up committees to examine the Public Protector’s report and other reports, including that of the Minister of Police. Consequently, the National Assembly resolved to absolve the President of all liability and the President did not comply with the remedial action taken by the Public Protector.

The EFF applied to the Constitutional Court to clarify the legal status or effect of the remedial powers vested in the Public Protector.

The Constitutional Court held, unanimously, that the Public Protector does not enjoy the power only to make recommendations, which may be disregarded when there is a rational basis for doing so. The nature of the Public Protector’s power to take appropriate remedial action is wide but not unfettered. The remedial action is always open to judicial scrutiny. It is not inflexible in its application but is situational. What remedial action is to be taken in a particular case will be informed by the subject matter of the investigation and the type of findings made.

Of particular importance, the Constitutional Court held that the Public Protector has the power to determine appropriate remedial action and the manner of its implementation. Here, ‘appropriate’ meant effective, suitable, proper of fitting to redress or undo the prejudice, impropriety, unlawful enrichment or corruption in a particular case. Only when it is appropriate and practicable to effectively remedy or undo the complaint would legally binding remedial action be taken.

The Constitutional Court held that the remedial action taken by the Public Protector against the President was binding.

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