SCA restores Public Protector powers

In a ruling that is likely to be challenged in the Constitutional Court, the SCA yesterday confirmed the Public Protector’s ‘watchdog’ powers and dismissed SABC chief operating officer Hlaudi Motsoeneng’s appeal against a High Court order that he be suspended and disciplinary action be instituted against him, notes Legalbrief. In confirming the powers of Advocate Thuli Madonsela’s Office, the SCA handed down a unanimous precedent-setting judgment, co-written by Judges Visvanathan Ponnan and Mahomed Navsa, stressing that ‘absent a review application’ any affected person or institution ‘is not entitled to simply ignore the findings, decision or remedial action taken by the Public Protector.’ It went further, adding: ‘Moreover, an individual or body affected by any finding, decision or remedial action taken by the Public Protector is not entitled to embark on a parallel investigation process to that of the Public Protector, and adopt the position that the outcome of that parallel process trumps the findings, decision or remedial action taken by the Public Protector.’ The latter injunction conflicts directly with the actions of President Jacob Zuma, supported by Parliament, who, after publication of Madonsela’s report on Nkandla, set up parallel investigations to show why he didn’t have to pay back a portion the public funds, as recommended by Madonsela, that were spent on his private homestead. The question now, notes Legalbrief, is whether a bid to take this ruling on appeal to the Constitutional Court will be pre-empted by the top court’s hearing of a similar matter, brought by the EFF and joined by the Public Protector and the DA, scheduled for February. In that matter, the EFF wants the court to order Zuma to pay back some of the Nkandla money, but the powers of the Public Protector are likely to be thoroughly debated and definitively set out. In the meantime, the SCA ruling is binding.

SABC v DA (393/2015) ZASCA 156