Blow for Thuli in court ruling

14/07/2011. Public Protector Thuli Madonsela briefs the media on her investigation into complaints and allegations of maladministration, improper and unlawful conduct by the Department of Public Works and the South African Police Service relating to the lease of office accommodation in Durban. Picture: Masi Losi

14/07/2011. Public Protector Thuli Madonsela briefs the media on her investigation into complaints and allegations of maladministration, improper and unlawful conduct by the Department of Public Works and the South African Police Service relating to the lease of office accommodation in Durban. Picture: Masi Losi

Published Oct 25, 2014

Share

Pretoria - Public Protector Thuli Madonsela is to fight for her powers after the Western Cape High Court dealt her a blow by rejecting her argument that her findings and remedial action are binding.

She said on Friday she would contest the ruling as it had “enormous implications for her office, access to justice for disadvantaged persons… and may have unintended consequences for administrative scrutiny beyond the role and powers of the public protector”.

This comes after Judge Ashton Schippers, in his judgment on the DA’s application for disciplinary charges to brought against SABC chief operating officer Hlaudi Motsoeneng and his suspension pending the outcome, said yesterday if it had been intended that the public protector’s findings should be binding, the constitution would have said so.

Madonsela said last night the basis for the judge’s ruling was “confusing”.

The judgment, in citing examples of ombuds from other countries, appeared to suggest the unique wording in the constitution on the mandate of the public protector, compared to traditional ombuds, made no difference.

 

The judgment had drawn heavily on what UK courts had had to say about the powers of an ombud and appeared to suggest her powers were the same.

“An analogous situation is that of someone saying there’s no difference between a Mercedes Benz and a VW Beetle because as long as something is a car, it has the same power as any other car,” she said.

 

The suggestion that an institution’s decisions could not be binding if it was not a court of law had serious implications for the powers of bodies such as the IEC and the Reserve Bank as it would imply they had no binding powers either.

Giving organs of state the discretion whether or not to implement her remedial action and suggesting this could be overturned only if taken on review would place the burden on “a Gogo Dlamini in whose favour the public protector finds” to go to court to have the remedial action implemented.

Madonsela said while these were her preliminary views, she was in the process of approaching her office’s lawyers to prepare for a review of the part of the judgment that dealt with the poweres of the public protector.

 

She said she had “profound respect for the judiciary” and she was pursuing her right to “disagree respectfully with the judgment”.

Pretoria News Weekend

Related Topics: