Fair and Equitable Society has observed a worrying trend of the Judiciary ruling on costs against the Public Protector in her personal capacity. This punitive approach is not corrective and has the potential to instil fear in the office of the public protector to investigate and issue reports and findings.
It is possible that the judiciary is aspiring for a politically stable South Africa and might have identified the person in the office of the Public Protector as the current source of political instability in the country. Even so, the office of the Public Protector must be protected by the courts.
We believe when the courts ordered costs against the Public Protector, they simultaneously did the following:
- Instituted a constructive dismissal of the Public Protector, since if such costs continue to pile up, the Public Protector may either have to stop issuing reports or may have to resign.
- The courts have instilled fear in the office of the Public Protector thereby stifling her ability to act with confidence in dealing and investigating cases;
- Powerful individual elites and institutions are indirectly given a sense of confidence to manoeuvre the system as far as their power can stretch. Thus rendering the office of the Public Protector as toothless;
- The courts have literally disarmed the country of its Public Protector.
The only competent institution to initiate the removal of the Public Protector is the National Assembly, and as such, the judiciary should respect the territory of the National Assembly as it is the territory of the voters.
The cost orders against the Public Protectors strips her, and ultimately her office, of powers to act and investigate cases without fear, rendering the office of the Public Protector vacant. This implies that the judiciary has taken over the powers of the National Assembly to remove the public protector. A consequence that cannot be taken lightly in the interest of the broader public and civil society of South Africa.
The broader consequences of this continued trend are as follows:
- The future appointment of the Public Protector will be difficult as the ideal candidates may be hesitant to avail themselves;
- Accepting appointment as a Public Protector could lead to asset attachments and sequestration;
- The future Public Protector may fear to act against the powerful; and
- We may end up in a constitutional crisis.
Fair and Equitable Society calls for caution by the courts against the Public Protector.
Fair and Equitable Society NPC
Enquiries must be directed to:
Sefu P. Sekgala
Cell: 072 965 9158