The Public Protector in South Africa is one of six independent state institutions set up by the country's Constitution to support and defend democracy.
These institutions are independent, and subject only to the Constitution and the law. According to the Constitution, they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.
Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.
No person or organ of state may interfere with the functioning of these institutions.
These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.
Public Protectors
The first person to hold the office was Selby Baqwa, appointed on the inception of the office in 1995. He was succeeded in 2002 by Lawrence Mushwana and in 2009 by Thuli Madonsela. The current Public Protector, is Busisiwe Mkhwebane, in office since October 2016.
The office of the Public protector has been faced with harsh criticism by parliament specifically by the majority party[11] for requesting an increase of R200m in the budget allocation for additional resources. With the justice portfolio committee chairman Mathole Motshekga[12] being critical of the budget and strategic presentation presented by Adv. Thuli Madonsela.
During the budget speech of 2015 the office of the Public Protector was allocated a total budget for 2015/16 of R 246.1 million[13] an increase of R 60 million as opposed to the increase of R 200 million initially requested, with R 15 million going to the employment of additional investigators and the retention of the 70 investigator who were previously appointed on contract.
The office of the Public Protector is required to appear before the National Assembly at least once every year. During the Adv. Thuli Madonsela's budget and strategic presentation, the advocate was requested to present progress reports before parliament on a quarterly basis.[14]
On 9 June 2022, President Cyril Ramaphosa announced that he is suspending Busisiwe Mkhwebane from her duties as the Public Protector in terms of Section 194 of the Constitution which allowed for the suspension of the Public Protector while an impeachment inquiry was under way.[15] On 11 September 2023, National Assembly voted to impeach Busisiwe Mkhwebane, with 318 in support, 43 against and one abstention; her removal comes a month prior to the end of a 7-year non-renewable term.[16]
On 1 November 2023, the president appointed Kholeka Gcaleka as the 5th Public Protector in terms of Section 193. She was previously acting Public Protector since Mkhwebane was suspended in June 2022.[17]
The Public Protector has an executive office which administers three major programmes:[18]
The Investigations and Outreach
The Executive Management
The Corporate Support Services
Mandate
The Public Protector receives its mandate from the Public Protector Act of 1994. The Public Protector is one of six State Institutions Supporting Democracy in South Africa. These institutions are independent of the government, subject only to South Africa's Constitution and the law, and report annually to Parliament.
The preamble of the Public Protector Act states, in part:
The Constitution of the Republic of South Africa ... provides for the establishment of the office of Public Protector to investigate matters and to protect the public against matters such as maladministration in connection with the affairs of government, improper conduct by a person performing a public function, improper acts with respect to public money, improper or unlawful enrichment of a person performing a public function and an act or omission by a person performing a public function resulting in improper prejudice to another person.
The Act also gives the Public Protector the authority to order other state institutions to take appropriate remedial action against any impropriety or prejudice made by government.
Any aggrieved complainant may lodge a complaint to the office provided that it falls within powers of the Public Protector in terms of the Public Protector act 23 of 1994. The Public Protector may investigate and take the appropriate remedial action on his/her findings.
History
The Public Protector is one of six State Institutions Supporting Democracy in South Africa. These institutions are independent of the government, subject only to South Africa's Constitution and the law, and report annually to Parliament.
Functions of the Public Protector
The powers of the Public Protector are regulated by the national legislation. Additional powers may also be granted by the national legislator. However, court decisions may not be investigated by the office. It receives and investigates complaints from the public government. Some functions include (but are not limited to):
The power to investigate any conduct of government or administration that is seen as improper/ prejudiced.
Their main objective is to defend democracy and its citizens. They are seen as an independent state institution.
They report to the National Assembly (NA) at least once a year.
They protect and enforce constitutional obligations.
Anyone may access or lay a complaint to the public protector for inadequate or corrupt services by government employees.
They do not deal with complaints against the judiciary.
Appointment
The Public Protector is appointed by the president, in accordance with the provisions of section 193 of the Constitution. The candidate must be a South African citizen who-
"
is a Judge of a High Court; or
is admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having been so admitted, practised as an advocate or an attorney; or
is qualified to be admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having so qualified, lectured in law at a university; or
has specialised knowledge of or experience, for a cumulative period of at least 10 years, in the administration of justice, public administration or public finance; or
has, for a cumulative period of at least 10 years, been a member of Parliament.
" – Sub-s. (1A) Act 23 of 1994
Tenure
Under chapter nine of the constitution, the Public Protector may only serve a non-renewable period of seven years in office.
Investigation Reports
Reports made by the Public Protector must be open to the public and be accessible to anyone. However certain reports may be kept confidential under exceptional circumstances.[19] The Public Protector has to date investigated at least 40 000 cases.[20]
One of the most prominent cases is the investigation into allegations of impropriety and unethical conduct relating to the installation and implementation of security measures by the Department of Public Works at and in respect of the private residence of President Jacob Zuma at Nkandla in the KwaZulu-Natal province
Jurisdiction
Any matters in which the Public Protector has jurisdiction may be reported to the office of the Public Protector by any person.
In terms of the Public Protector Act 23 of 1994[21] and other legislative acts, the Public Protector may investigate, on the basis of a complaint or on his or her own initiative, any level of government. This includes national, provincial and local government, any public office bearer, any parastatal and any statutory council.
Similar to other bodies under the Chapter nine institution under the Constitution, the office of the Public Protector is independent of government and must be impartial and must exercise their powers and perform their function without any influence or prejudice.
Budget
Currently the office of the Public Protector manages an estimated 40,000 cases, with a staff of 314.[22] During the 2013/14 budget, the office was allocated R199.3m, with an increase of R18.3m for the 2014/15 financial year.
During the budget of 2015, the office was allocated an additional increase of R60m instead of the R200m initially requested at the justice portfolio committee. As a result, the office of the Public Protector was required to make drastic cutbacks.[23]
As a result of the funding difficulties, the spokesman of the office the Public Protector office cited that they would look at external agencies to help fund the office. The executive management of the office of the Public Protector has held meetings with development partners from German, Japan and Belgium.[24]
Related Research Articles
Qubudile Richard Dyantyi has represented the African National Congress (ANC) in the National Assembly since 2019. Before that, he was a Member of the Western Cape Provincial Parliament and served as the Western Cape's Member of the Executive Council (MEC) for Local Government and Housing from 2005 to 2008. In 2021, he was elected chairperson of the national parliament's Committee for the Section 194 Enquiry into Busisiwe Mkhwebane's fitness to hold office.
The Auditor-General of South Africa (AGSA) is an office established by the 1996 Constitution of South Africa and is one of the Chapter nine institutions intended to support democracy, although its history dates back at least 100 years.
Tina Monica Joemat-Pettersson was a South African politician who served as the Chairperson of the Portfolio Committee on Police from July 2019 until her death in June 2023. A member of the African National Congress, Joemat-Petterson had previously served as the Minister of Agriculture, Forestry and Fisheries from 2009 until 2014 and as the Minister of Energy from May 2014 until March 2017 under President Jacob Zuma.
Pravin Jamnadas Gordhan is a politician and anti-apartheid activist who has held various ministerial posts in the Cabinet of South Africa. He served as Minister of Finance from 2009 until 2014 and again from 2015 until 2017, as Minister of Cooperative Governance and Traditional Affairs from 2014 until 2015, and as Minister of Public Enterprises since February 2018.
The Electoral Commission of South Africa is South Africa's election management body, an independent organisation established under chapter nine of the Constitution. It conducts elections to the National Assembly, provincial legislatures and municipal councils.
The Financial Services Board (FSB) was the government of South Africa's financial regulatory agency responsible for the non-banking financial services industry in South Africa from 1990 to 2018. On the 1 April 2018 its responsibilities were split into two new agencies the Financial Sector Conduct Authority (FSCA) for conduct regulation and the Prudential Authority (PA) for prudential regulation.
Thulisile Nomkhosi "Thuli" Madonsela is a South African advocate and professor of law, holding a chair in social justice at Stellenbosch University since January 2018. She served as the Public Protector of South Africa from 19 October 2009 to 14 October 2016. In 1996, she helped draft the final constitution of South Africa promulgated by then-President Nelson Mandela.
The private residence of former South African President Jacob Zuma is situated about 24 km (15 mi) south of the rural town of Nkandla in KwaZulu-Natal and is commonly referred to as the Nkandla homestead. During Zuma's presidency, the homestead was the subject of a major public controversy, sometimes referred to as Nkandlagate, concerning what were ostensibly security upgrades to Zuma's compound, at a cost of over R246 million. The use of public funds to make these improvements received significant media coverage and political opposition.
Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11 is an important judgment of the Constitutional Court of South Africa which finds that President Jacob Zuma breached the South African Constitution by failing to implement the recommendations in the Public Protector's Nkandla report.
Busisiwe Mkhwebane is a South African advocate and prosecutor who has been a Member of the National Assembly of South Africa since October 2023, representing the Economic Freedom Fighters. She served as the 4th Public Protector of South Africa from October 2016 until her impeachment in September 2023. She is the first head of a Chapter 9 institution to be removed through impeachment.
Hlaudi Motsoeneng is the leader of African Content Movement (ACM) who served as the acting Chief operating officer of the South African Broadcasting Corporation (SABC) from 2011 to 2013. Motsoeneng was removed from his position as Chief operating officer after it had been found that he lied about his qualifications. After being removed as acting Chief operating officer it was announced that Motsoeneng would move back to his previous position as Group Executive Editor of Provinces and Corporate Affairs of the SABC. In December 2016, the Western Cape High Court ruled that Motsoeneng's appointment as Group Executive was illegal and that he was "not entitled to occupy any position at the SABC". In June 2022 the state capture commission proposed criminal investigations into possible contraventions of the Public Finance Management Act when group CEO Lulama Mokhobo and COO Motsoeneng concluded an SABC agreement with the Gupta owned TNA newspaper. In July 2022 the High Court dismissed Motsoeneng's bid to appeal the repayment, with interest, of R11.5 million obtained unlawfully when the SABC concluded a deal with MultiChoice.
The Republic of Gupta: A Story of State Capture is a 2017 book by South African investigative journalist Pieter-Louis Myburgh.
The Vrede Dairy Project is a South African dairy project established in 2012 on Krynaauwslust Farm, near the town of Vrede, Free State Province. The dairy was established as a public-private partnership with Estina, a Black Economic Empowerment company, as part of the Free State provincial government's agricultural project, Mohoma-Mobung. Estina was given the land under a free 99 year lease.
John Harold Jeffery has been the Deputy Minister of Justice and Constitutional Development in South Africa since 2013. He was appointed by President Jacob Zuma in a cabinet reshuffle on 9 July 2013, and has remained in the post throughout the tenure of current President Cyril Ramaphosa.
Anton Wilhelm Bredell is a South African politician for the Democratic Alliance. He is the current Western Cape Provincial Minister of Local Government, Environmental Affairs and Development Planning and a Member of the Western Cape Provincial Parliament.
Pemmy Castelina Pamela Majodina is a South African politician serving as a Member of the National Assembly since 2019. A member of the African National Congress, she is the party's chief whip in the assembly. She was formerly a Member of the Eastern Cape Provincial Legislature between 2004 and 2019 and a Member of the provincial Executive Council for five different portfolios from 2008 to 2019, respectively. Majodina was a permanent delegate to the National Council of Provinces from 1994 to 2004.
Impeachment in South Africa is the process by which the legislative body of the Republic of South Africa addresses legal charges against a government official.
The Committee for Section 194 Enquiry is an ad hoc committee of the National Assembly of South Africa that was established on 7 April 2021 to determine if there are grounds for the removal of Advocate Busisiwe Mkhwebane as Public Protector.
Madipoane Refiloe Moremadi Mothapo is a South African politician who has served as a Member of the National Assembly of South Africa for the African National Congress since 2021. She had previously served as an African National Congress MP from 2014 to 2019.
Sharise Erica Weiner is a South African judge of the Supreme Court of Appeal. Before her appointment to the Supreme Court in December 2022, she was a judge of the South Gauteng High Court from 2011 to 2022. She was admitted as an advocate in 1978 and gained silk status in 1995.
This page is based on this Wikipedia article Text is available under the CC BY-SA 4.0 license; additional terms may apply. Images, videos and audio are available under their respective licenses.
