The powers of the South African public protector : a note on economic freedom fighters v speaker of the national assembly

Abstract

The scope of the powers of the Public Protector was one of the main questions for determination by the Constitutional Court in the landmark case of Economic Freedom Fighters vs Speaker of the National Assembly. This note critically examines that case, especially in relation to its finding that the remedial actions of the Public Protector have a binding effect. The note argues that the court erred by ignoring the text and history of the Constitution in its interpretations of the powers of the Public Protector. We argue that the Court got it wrong when it dismissed an argument that the powers of the Public Protector should be sourced from the Public Protector Act and not directly from the Constitution. In its critical analysis of Economic Freedom Fighters vs Speaker of the National Assembly, the note engages with two other related decisions from lower courts.