The Public Protector report on the Nkandla scandal brought the Public Protectors office into focus for many people. Since then it has been a common feature in the news, especially now as a replacement for Thuli Madonsela is being sought. Advocate Busisiwe Mkhwebane appears to be the one to succeed Madonsela after she garnered the most support from all the major parties.
Ahead of the formal appointment of the new Public Protector, who will take full control of the office at the end of September, Justmoney looks at this vital Chapter 9 and how it can help you.
The Public Protector
The Public Protector has to be a South African citizen “who is suitably qualified and experienced and has exhibited a reputation for honesty and integrity,” according to the website. A person is appointed to the position by the President on the recommendation of the National Assembly.
The Public Protector is subject only to the Constitution and the law, according to Section 181 of the Constitution. “He/she must be impartial and must exercise his/her powers and perform his/her functions without ‘fear; favour or prejudice’. No person or organ of state may interfere with the functioning of the Public Protector’s office,” clarifies the Public Protector website.
It is within the Public Protector’s power to investigate conduct in state affairs, as well as in the public administration in any level of government, which is accused or suspected “to be improper or to result in any impropriety or prejudice.” However, a limitation exists wherein the Public Protector may not investigate court decisions.
Following an investigation by the Public Protector, s/he reports on the conduct investigated and can take appropriate remedial action.
“The Public Protector is neither an advocate for the complainant nor for the public authority concerned. He/she ascertains the facts of the case and reaches an impartial and independent conclusion on the merits of the complaint,” adds the Public Protector website.
The mandate of the Public Protector
“The mandate of the Public Protector is to strengthen constitutional democracy by investigating and redressing improper and prejudicial conduct, maladministration and abuse of power in state affairs,” explains the Public Protector website.
Furthermore, the office of the Public Protector is also mandated to resolve administrative disputes, or to rectify any act or omission in administrative conduct through mediation, conciliation or negotiation. The Public Protector also advises on appropriate remedies or employing other expedient means, “reporting and recommending; advising and investigating violations of the Executive Members Ethics Act of 1994; resolving disputes relating to the operation of the Promotion of Access to Information Act of 2000, and discharging other responsibilities as mandated” by various forms of legislation in South Africa.
Who can be investigated by the Public Protector?
There are a number of people and organisations/groups that can be investigated by the Public Protestor. These include:
- Government at any level, including national, provincial and local government.
- Any person performing a public function. This includes anyone performing any official duty which affects all, or part of the people of South Africa, for example a government employee, such as an electoral officer.
- Public entities such as the SABC, Eskom and Telkom
- Statutory councils, for example the Human Sciences Research Council and the Council for Scientific and Industrial Research.
The below cannot be investigated by the Public Protector:
- Court decisions and sentences
- Private individuals
- Private companies
- Professionals not employed by government such as doctors or lawyers
How to lodge a complaint with the Public Protector
Before lodging a complaint with the Public Protector, it is advised that you first attempt to resolve the problem yourself. According to the Public Protector website, this can be done by speaking to the officials involved, and if this does not help, writing to the person in charge of the officials.
It adds: “You may also consider approaching your member of the National or Provincial Parliament. Only if you are then still unable to solve the problem, should you write to the Public Protector.”
The letter sent to the Public Protector should contain the following information:
- The nature of the complaint.
- Background and history of the complaint.
- The reasons why you feel the complaint should be investigated by the Public Protector.
- The steps you have taken to solve the problem yourself (if applicable). You should mention names of the officials you have been dealing with, on what dates, and what was said. Copies of any correspondence between you and the officials should be attached to your letter.
- A telephone number where you can be reached, if you have one.
Furthermore, in certain circumstances the Public Protector may also require a statement under oath prior to initiating an investigation.
“If you are unsure whether your problem is something the Public Protector will investigate, or if you cannot write, you can phone the Public Protector's office. There are trained professional staff members who will listen to a complaint, big or small, and conduct investigations. In some cases the staff can help people to find quick solutions to their problems. The staff can also tell you where to complain if the Public Protector cannot help you,” reveals the Public Protector website.
In addition, you also have the option to visit the office of the Public Protector for an interview or consultation should you prefer. However, it is advised that you write and ask for an interview.
Any complaint made to the Public Protector must be reported within two years from the occurrence of the incident concerned.
There is no fee associated with lodging a complaint, and if necessary, the name of the complainant will remain confidential.
How to contact the Public Protector
The office of the Public Protector may be contacted via its toll free line on 0800 11 20 40, alternatively the customer service line is (012) 366 7143. In addition, an email detailing the dispute can be sent to firstname.lastname@example.org.
Where your complaint cannot be investigated by the office of the Public Protector, the staff will assist in directing you to the appropriate institution.
For more information on the Public Protector, click here.