Page 70 - Litigating Land and Housing in South Africa: Lessons and Reflections

but it does not allow for the Public Protector to to to decline to an investigation at at all all In particular the the Public Protector cannot cannot be be selective in in the the cases she chooses to to to to investigate investigate and also cannot cannot be be subjected to to to to pressure by any person not not to to to to investigate investigate a a a a a a a a a a a complaint complaint This ensures that complaints relating to to to abuse of public power and and corruption are investigated exposed and and remedied While the the Public Protector has has the the power to to to take take remedial remedial action action she also has has a a a a a a a a a a a a a duty to to take take remedial remedial action action that provides a a a a a a a a a a a a a a a proper fitting suitable and and effective remedy for whatever complaint and and against whomsoever the the Public Public Protector is called upon to to to to investigate The Court found that the the Public Public Protector had failed to to to take remedial action which fulfilled these criteria 6 2 2 5 2 2 Investigative powers of the public protector
Section 7 of of of the the the the the Public Public Public Protector Protector Protector Act describes the the the the the investigative investigative powers powers of of of the the the the the Public Public Public Protector Protector Protector In terms of of of this section the the the the the the the Public Public Public Public Protector Protector Protector Protector has has extensive investigative investigative powers powers including the the the the the the the power power power power to to to to to to to to subpoena any person person to to to to to to to to give evidence or or or or or or or produce documents The Public Public Public Protector Protector Protector also also has has the the the the the the power power power to to to to to to to enter enter or or or or or or or authorise another person person to to to to to to to enter enter any any building for for the the the the the the purposes of of investigation Under section 7(3) the the the the the the Public Public Protector Protector can also also also call upon any any other person person in in in in in in in in in government to to to to to assist her her her her with the the the the the performance of of her her her her functions This could also also include instructing such a a a a a a a a a a a a a a a a person person to to to to to to investigate and report back to to to to to to her her her her her The Public Protector in in in in in in in in the the the the Vrede Dairy Project investigation was found not to to to to to to have used her her powers to to to to to to subpoena subpoena bank records records or or or or or or or or or accounts from the the the Department or or or or or or or or or Estina nor did she subpoena subpoena any of of of the the the the implicated officials to to to to to to answer questions under oath or or or or or or or or or produce records records or or or or or or or or or documents The Court thus held that the the the the the Public Public Protector Protector had failed failed to to to to to to comply with section section 6 of of of of of the the the the the Public Public Protector Protector Act and section section 182 182 of of of of of the the the the the the Constitution Constitution because she failed failed to to to to to to properly investigate or or or or or adopt the the the the the the stance of of of of of a a a a a a a a a a a a a a a a a a proactive investigator She contravened section section 6(4)(a) and and and 6(5) of of of of the the the the Public Protector Act and and and section section 182(1)(a) and and and (b) of of of of the the the the Constitution Constitution 6 2 5 3 Budgetary constraints as a a a a defence
In establishing whether a a a a a a a a a public functionary – – in in in in this case the the the the the the office of of of the the the the the the Public Protector – – can use the the the the the the defence
of of of budgetary constraints which preclude it it it it from fulfilling its constitutional obligations the the the the the the the Court Court Court followed the the the the the the the Constitutional Court Court Court in in in in Rail Commuters Action Group34 and and Blue Moonlight 35 where the the the Court Court Court adopted a a a a a a a a a a a a a a a a a a a a a a a a context- sensitive reasonable reasonable standard A A functionary must show that it it it it it it it has taken all reasonable reasonable measures within its its available resources to to to to fulfil its its constitutional obligations The Public Protector was found not not to to to to have adequately set out supporting facts to to to to illustrate why a a a a a a a a a a a a proper investigation could not not be accomplished Furthermore Treasury’s report 34 35 Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd & another 2012 (2) SA 104 (CC) 70
LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS