LAYING DOWN THE LAW: Public Protector Busisiwe Mkhwebane says the law on the investigation of ministers is prescriptive, but any maladministration in state institutions will need to be investigated. Picture: Phill Magakoe
Johannesburg - Members of Parliament have mooted the amendment of legislation governing the investigation of members of the executive by the Office of the Public Protector.

They also want amendments to stop state institutions from taking reports of the public protector on judicial review at the expense of the public purse.

The matter was raised when Public Protector Busisiwe Mkhwebane and her delegation briefed the justice and correctional services portfolio on the institution’s budget for 2017-18 last week.

This happened as perceptions persist that Mkhwebane’s office gives priority to the investigation of ministers who violated the Executive Members Ethics Act (EMEA) which deals with the conduct of ministers, the president, MECs, premiers and the president.

There have been concerns with Mkhwebane’s previous statements of paying more attention to “grassroots” complaints by ordinary citizens, as opposed to “high-profile” cases.

Mkhwebane said her office as the institution supporting and strengthening constitutional democracy would do its work and be subjected to the rule of law.

“If there is any maladministration in state institutions, we will indeed investigate these,” she said.

However, she said the law on the investigation of ministers was very prescriptive.

“It does not give us discretion. (It says) the public protector must investigate a complaint against any member of the executive and even compile a report within 30 days,” Mkhwebane said.

She revealed that they have a unit dealing with high-profile cases, which could take three years to investigate.

“It is unfortunate that some of the cases that can be dealt with in courts are brought to the public protector,” Mkhwebane said.

She also said it was a constitutional mandate to serve ordinary citizens.

“If we don’t do it, we violate the mandate as provided in the constitution,” Mkhwebane said.

The ANC’s Loyiso Mpumlwana said a prescriptive law could result in a pile-up of complaints about members of the executive during Mkhwebane’s seven-year term.

“I request you to note all those laws and sections that will distract you from doing your work to service the majority of South Africans,” he said.

The ANC’s Charlotte Pilane-Majake said Mkhwebane should be wary of attempts to use her office for political gain.

“Utilise your mandate without fear, favour or prejudice and do not be swayed by the speed of noise directed to your office.

"You can investigate on your own,” she said.

Committee chairperson Mathole Motshekga said there was a need to look at whether it was affordable and sustainable that government departments should approach courts to reverse or confirm the public protector’s decisions.

Motshekga suggested departments should exhaust certain mechanisms before approaching the courts.

“For instance, you have intergovernmental-relation processes and other internal remedies like negotiation

"Going to court must be the last measure, otherwise we can bankrupt the state by rushing to court,” he said.

“I want to support you and the committee (in trying to) revive and amend the legislation and to look at how we deal with this issue of reviews and maybe create other remedies,” Motshekga said.

Mkhwebane said it was for MPs to look at the legislation.

“We made proposals, especially the members' code,” she said.

Sunday Independent