Abstract:
In this study, I evaluate the powers of the Public Protector, in light of the controversies that have been caused by the release of reports recently and in the past, with a selected number of reports being brought to the fore. I proceed from the premise that there has not always been agreement regarding the legal effect of the remedial actions taken by the institution. In order to highlight the issues, I discuss past controversies, which have often created attention from various sectors of society, from the media, politicians, lawyers as well as the rest of the citizenry. I will therefore discuss the broader implications of the so-called EFF judgment in light of past and current issues, which have been or are presently the cause of disagreement. In chapter 1 of this study, broader issues are discussed and the aims of the study are set out. Chapter 2 discusses constitutional and statutory provisions regulating the office of the Public Protector (“hereinafter the Public Protector”). My primary focus is on the Constitution of the Republic of South Africa, 1996 and the Public Protector Act, with a brief discussion of other relevant pieces of legislation. Chapter 3 discusses different controversies, which have existed in the past, as well as the legal position before the ruling in the EFF judgment. A build-up of cases mainly involving the South African Broadcasting Corporation (SABC) have been brought before the High Court and the Supreme Court of Appeal for adjudication, with the two respective courts adopting two different approaches on the issue of the legal effect of the Public Protector’s remedial actions. There was thus a need for clarity on the matter, as continued lack of clarity would have led to lack of compliance with the recommendations of the institution being perpetuated. Chapter 4 takes a critical look at the facts and decision of the court in the EFF judgment. Issues that remain unclear even after the ruling in the EFF judgment are discussed in chapter 5. This chapter highlights the fact that, even after the ruling in the EFF judgment, there are still matters which are unclear and therefore require definitive rulings by the courts, for the sake of legal certainty. I conclude the discussion in chapter 6.
