Article by listed attorney: Fawzia Khan
In delivering it’s watershed judgment in the case involving the SABC and the Public Protector, (referred to as the SABC vs. DA & Others), the Supreme Court of Appeal has clearly set out the functions, powers and status of organs of the state including that of the Office of the Public Protector.
The judgment, which was delivered on 8 October 2015, has received much media attention and has far reaching implications for civil society. For those not familiar with the case, this was a matter where The Democratic Alliance took the SABC to the High Court for failing to adhere to a finding made by the Public Protector, Ms. Thuli Madonsela against the COO of the SABC, Hlaudi Motsoeneng. The findings showed that Motsoeneng was given a permanent position as COO of the SABC, despite all the irregularities which were uncovered by her office, one of them being that he lied on his CV that he matriculated. Schippers J of the High Court however held the findings of the Public Protector were not binding and enforceable on persons and organs of State. He did however find that the allegations against Motsoeneng were very serious and ordered that the SABC suspend him (Motsoeneng) and conduct a proper investigations into the allegations as raised in the Public Protector’s report.
The South African Broadcasting Corporation (SABC) approached the Supreme Court of Appeal as it argued that the High Court acted outside it’s scope and was not empowered to make a ruling calling for the suspension of and investigations against the COO of the SABC. The SCA likened the Office of the Public Protector, as the guardian who “guards the guards” and said the role was primarily ‘to watch the watchers and to guarantee that the government discharges its responsibilities without fear, favour or prejudice.’
The Supreme Court of Appeal (SCA) looked at where the Office of the Public Protector drew its powers from and held that it was found in both the Constitution as well as the Public Protector Act. The SCA said, “In constitutional States there are checks and balances to ensure that when any sphere of government behaves aberrantly, measures can be implemented and steps taken to ensure compliance with constitutional prescripts’. It held that even though the Office of the Public Protector performed its functions in terms of national legislation, it was not an organ of the State within the national sphere of government and were not subject to national executive control. “Accordingly, they should be, and must manifestly be seen to be, outside government”.
The SCA overturned Schippers J earlier High Court judgment and found that our constitution calls upon all public administrators and all government institutions “to provide effective, transparent, accountable services, to respect the constitutional status and powers of government in other spheres, not to act in such a manner which encroaches upon the institutional integrity of government in another sphere”. It also said that our Constitution dictates that all spheres of government and all organs of State must co-operate with one another and must assist and support one another and avoid legal proceedings against one another. The SCA accordingly dismissed the appeal brought by the SABC, who have now indicated that they would take the matter to the Constitutional Court.
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