Public protector or paper tiger? personality, politics and performance: an analysis based on precedent.

Abstract

Since the inception of the post-Apartheid era, the Public Protector has found its root of empowerment in legislation (the Constitution and the Public Protector Act), which primarily constructs it as an independent and purpose built watchdog. According to the Public Protector Act, the “Public Protector has the power to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to have resulted in any impropriety or prejudice, to report on that conduct and to take appropriate remedial action, in order to strengthen and support constitutional democracy in the Republic”. This dissertation aims to examine critically the office of the Public Protector through a lens focused on incumbents to the office and the underlying circumstances of their appointments. An analysis seeking to establish whether a pattern of ineffectiveness has developed will be conducted. Further, there will be a specific focus on cadres’ deployment, which has been defined as “the appointment by government, at the behest of the governing party, of a party-political loyalist to an institution or body, independent or otherwise, as a means of circumventing public reporting lines and bringing that institution under the control of the party as opposed to the state,” and its role in adding to the ineffectiveness of the office as aforementioned. Since the inception of the office of the Public Protector, each appointed Public Protector has been closely linked with the African National Congress (“ANC”): Baqwa (ANC member), Mushwana (ANC Limpopo Provincial Executive), Madonsela (ANC member) and Mkhwebane (alleged affiliations with Zuma faction of the ANC). Save for Madonsela (3rd incumbent), each Public Protector has either made decisions that were favourable to the ANC (Mushwana and Baqwa) or made errors in their investigations that have resulted in adverse costs orders in matters that had come before the court and in findings in their investigation reports which seemed biased towards a particular faction of the ANC, if not the ANC as a whole. The aforementioned conduct naturally resulted in the office and the appointments being brought into question. Examples of such include Baqwa in respect of the Sarafina II report, Mushwana regarding the PetroSA report, and Mkhwebane in light of the Absa judgment which arose from the Bankorp report. It is the contention of the author that proper selection and appointment is indispensable for the proper functioning of the Public Protector. The influence of politics and the system of cadre deployment must be jettisoned. It is further submitted that, if these elements (politics and cadre deployment) are removed, thereafter a theory which highlights the importance of choosing the correct person for the job, namely the Human Capital theory, applied, then the result will be that the appointment of the Public Protector will be made from an appropriate and specific category of persons. As submitted by the author, the appointment of the Public Protector should be made from the ranks of the Supreme Court of Appeal and Constitutional Court judges. In terms of effecting this change to the current selection process, an amendment of section 1(A) of the Public Protector Act can be effected. This is practical as it will be unnecessary for the involvement of Constitutional Court direction to amend the Constitutional provisions, but rather a simple amendment of the said legislation. The result will be that the office will have the ability to operate in a manner as one would envisage based on the Constitution’s provisions, which will also be discussed in detail.