An ordinary person understanding the Public Protectors findings on Nkandla
It is important to remember the following points when reading and understanding where the Public Protector is coming from.
She is an Advocate. Not a lawyer, an Advocate. Her name will probably be followed with Advocate Thulisile Madonsela (BA) (LLB) (LLDHC)
She has several legal degrees. She is an advocate of the High Court of South Africa, human rights and constitutional lawyer, seasoned administrative investigator, equality expert and policy specialist with over two and a half decades of post legal qualification experience, Thuli Madonsela holds a BA Law (UNISWA,1987), an LLB (Wits 1990), LLD Honoris Causa (Fort Hare, 2014) and LLD Honoris Causa (Stellenbosch, 2015)
She is able to argue in the Supreme Court. The highest Court in South Africa.
She helped to draft our constitution, so she knows the law well.
She is co-architect of Justice Vision 2000, the National Action Plan on the Promotion and Protection of Human Rights, Promotion of Equality and Prevention of Unfair Discrimination Act, Employment Equity Act, Local Government Transition Act. She has contributed to several other laws enacted to transform the SA legal system since 1994, including the Promotion of Administrative Justice Act and the Repeal of the Black Administration Act.
President Zuma himself said in March 2011 in Durban... “The Office of the Public Protector … has to ensure that citizens are protected from violations of their rights, the abuse of power, negligence, unfair discrimination and maladministration. People will have faith in the office if they know that the Public Protector will act impartially to protect their rights. Society needs to believe that the Office of the Public Protector will not be influenced by either the complainants or those institutions or individuals that are being investigated. We, in government respect the constitutionally guaranteed independence of our Chapter 9 institutions. We respect the work of the Public Protector even when we disagree with the findings or censure from that office. We respect our Chapter 9 institutions, as well as the judiciary and Parliament the other two independent arms of the State. We value these institutions of our democracy because we are proud of the Constitution of our country which we worked so hard to develop … In this regard I was pleased to read the Service Pledge by … our Public Protector, in the Annual Report of the Public Protector for the financial year 2009 to 2010. She pledged to be accessible to and be trusted by all persons and communities, take prompt remedial action, and promote good governance in the conduct of all state affairs. I would encourage that this important pledge by our Public Protector be emulated by our government departments”
‘The Supreme Court of Appeal in 2012 stated, when asked to define the Public Protector’s responsibilities, that “The office of the Public Protector is an important institution” It gives the people the last defence against oppression “against corruption in public office” things that slowly destroy the nation. If that office doesn’t do its work, or is undermined, then the Nation will lose an indispensable constitutional guarantee’
The former Chief Justic Sandile Ngcobo, speaking at the same meeting where President Zuma applauded the Public Protectors office for their outstanding work said the following: “The importance of the role of such institutions is especially clear in many countries throughout Africa, where there is often a desperate need for basic human needs such as food, drinking water, health care, housing, education and social security. Our countries cannot bear the improper allocation of government resources. Having a public Protector, or Ombudsman, with a mandate to investigate and publicly report in government administration is essential.” (here he is saying that we as a nation need all the money we have to help our people, that there can be no waste.)
One of the people said she is only there to report, not to investigate. This is totally incorrect. She is there to investigate and has to understand financial as well as legal points. She has done all of that in her legal studies as well as in her post graduate studies. ‘Her postgraduate studies include partial LLM studies and legal courses mainly in the area of Equality, Constitutional Analysis, Administrative Justice, Legal Drafting and Public Administration. She is also trained in Administrative Investigation Techniques, including Forensic Investigations, Strategic Planning, Scenario Planning, Project Management, Mediation and Negotiations’ Forensic investigation is when you put all financial as well as legal information together and come to a conclusion ie. Result.
The Public Protector receives and investigates complaints from the public against government agencies or officials, and has the power to recommend corrective action and to issue reports. Parliament is there to see that whatever corrective action she thinks is necessary is done.
The Public Protector is subject only to the Constitution and the law and is independent of government and any political party. No person or organ of state may interfere with the functioning of the Public Protector's office.
The Public Protectors office only reports to the people. No political party or person ie The President, The Minister of Police may interfere with her or her findings. They may not tell her what to do.
Who can the Public Protector investigate? The Public Protector is independent of government or political parties and can investigate: Government at any level. This includes central and provincial government, state departments and local authorities. Any person performing a public function. This includes anyone performing any official duty which affects South Africans, for example a state employee such as a policeman or an electoral officer, Corporations or companies where the state is involved, for example Eskom and Telkom. Statutory councils, for example the Human Sciences Research Council or the Council for Scientific and Industrial Research.
What can the Public Protector investigate?The Public Protector is tasked with investigating improper prejudice suffered by the complainant or another person, for example as a result of: Abuse of power. Unfair, capricious, discourteous or other improper conduct. Undue delay. The violation of a human right. Any other decision taken, or situation brought about, by the authorities. Maladministration. Dishonesty or improper dealings with respect to public money. Improper enrichment. Receipt of improper advantage.
ref PIC 1- The Public Protector is allowed to investigate anything that she believes is against the law. She can investigate the President, any parastatal and any Minister in South Africa. She must then put a report together, this must have the problem and what she believes is needed to fix this problem.The President then has 14 days to give this to Parliament together with the actions to fix the problem.
ref PIC 2 - The President can then fire whoever the PP has found guilty of anything against the law.
A lawyers oath: ‘I, do swear/affirm that I will truly and honestly demean myself in the practice of ATTORNEY according to the best of my knowledge and ability, and further, that I will be faithful to the Republic of South Africa.’
TBC
