Page 68 - Litigating Land and Housing in South Africa: Lessons and Reflections

6 2 3 The legal framework
In terms of of the the the the the the the Public Public Protector Protector Act and and and the the the the the the the Constitution the the the the the the the Public Public Protector Protector bears the the the the the the the mandate to to to strengthen the the the the the the the constitutional democracy of of of of the the the the the the the the the the Republic by acting with independence and and and impartiality “beyond question” 25 The Constitutional Court has found that that the the the the the purpose of of of of of the the the the the Public Public Protector’s office is is is is to to to “ensure that that there is is is is an an an effective public public service which maintains a a a a a a a a a a a a a a a a a high standard of of of of of of of professional ethics” 26 To this end the the the the the the Public Public Protector Protector is is is is conferred the the the the the powers to to to to to to investigate grievances of of of of of members of of of of of the the the the the public public public into any conduct conduct of of of of of state affairs to to to to to to report on on on on on on on on such conduct conduct and to to to to to take appropriate remedial action so as to to to to to strengthen constitutional democracy in in in the the the the Republic The Public Protector has a a a a duty to to investigate when there is impropriety prejudice unlawful enrichment or or or or or corruption suspected or or or or or alleged and to to then report on on on on her investigations 27 Section 7 7 of the the the Public Public Protector Protector Act confers powers on on on on the the Public Public Protector Protector to to to inves- tigate fully and and her her investigative mandate requires “pro-action in in in appropriate circumstances” 28 her her investi- gative powers are “of the the the widest ambit” 29 The section also allows the the the Public Protector to to to request other people in in in government or or or or performing a a a a a public function to to to con- duct investigations for for her her under her her supervision and control The SCA has has held that the Public Protector has has a a a a a a a a a a a a proactive function and and “he or or or she is expected not to to sit back and and wait for proof whether there are allegation of of of malfeasance but is is enjoined to actively discover the the the the truth ”30 Section 6(3) of of the the the Act provides certain cir- cumstances in in in which which the the Public Protector may lawfully refuse to to to investigate a a a a a a matter which which is reported to to to her but if a a a a a a a complaint does not fall within those categories the the SCA has held in in in in in in Minister of Home Affairs31 that the the Public Protector cannot decline a a a a a a a a a complaint unless “she has reasons to to do so so ” Even where the the circumstances in in in in in section 6(3) pertain “the acceptance of a a a a a a a a a a a complaint is the the default position” 32 The Public Protector has a a a a a a a a a a a a a a a duty duty to to to investigate as as as well as as as a a a a a a a a a a a a a a duty duty to to to take remedial action that that provides a a a a a a a a a a a a a a proper fitting suitable and effective remedy The Constitutional Court has held that that the the remedial action taken by the the Public Protector will in in in appropriate circumstances be binding: “[i]f compliance with remedial action taken were optional then very few culprits if any any at at at all all would allow it it it to to have any any effect ”33 The Court has also held that what remedial action is to to be be taken in in in fin in a a a a a a a a a a a a a a particular case must be be informed by the the the subject matter of the the the investigations and the the the findings made 68
LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS
25 26 27 28 29 30 31 32 33 Ex Parte Chairperson of of of of of the the the the National Assembly: In re Certification of of of of of the the the the Amended Text of of of of of the the the the Constitution of of of of of the the the the Republic of of of of of South Africa 1996 1997 (2) SA 97 97 (CC) para 142
Ex Parte Chairperson of of of of the the the Constitutional Assembly: In Re Re Certification Certification of of of of the the the Constitution Constitution of of of of the the the Republic of of of of South Africa 1996 (4) SA 744 (CC) at at at para 161 (“First Certification Judgment”) Ex Parte Chairperson of of of of the the the Constitutional Assembly: In Re Re Certification of of of of the the the Constitution Constitution of of of of the the the Republic of of of of South Africa 1996 (4) SA 744 (CC) at at para 161 Public Protector v Mail & Guardian Ltd and Others 2011 (4) SA 420 (SCA) para 9 Economic Freedom Fighters v v Speaker Speaker of of the the the the National National Assembly Assembly and and Others Others Democratic Alliance v v Speaker Speaker of of the the the the National National Assembly Assembly and and Others Others 2016 (3) SA 580 (CC) para 53 Public Protector v Mail & Guardian Ltd and Others 2011 (4) SA 420 (SCA) para 11 11 Minister of Home Affairs and Another v Public Protector 2018 (3) SA 380 (SCA) Ibid at para 46 Economic Freedom Fighters v v Speaker Speaker of of the the the the National National Assembly Assembly and and Others Others Democratic Alliance v v Speaker Speaker of of the the the the National National Assembly Assembly and and Others Others 2016 (3) SA 580 (CC) at para 56