Page 71 - Litigating Land and Housing in South Africa: Lessons and Reflections

and and and the the the provisional report for which much work and and and investigation investigation had already been been conducted could have been been used by the the the Public Protector to to to limit the the the expense incurred to to to complete her investigation investigation properly and and and adequately 6 2 5 4 Power of the public protector
to to refer a a matter
In In the the the the the provisional report compiled under Thuli Madonsela one of the the the the the remedial actions stipulated was to to to refer the the the the the matter
for for for further investigation investigation by the the the the the the Special Investigating Unit to to to to to to conduct conduct conduct forensic forensic investigations into serious maladministration improper conduct conduct conduct and and and unlawful expenditure expenditure and and and to to to to to the the the the the Auditor-General to to to to to conduct conduct conduct a a a a a a a a a a a a a a a a a a a forensic forensic and and and due diligence audit verifying the the the expenditure expenditure of public money In the the the final report this this remedial remedial action action was removed removed The The Public Protector stated that that she she she had removed removed this this remedial remedial action action because she she she considered that that she she she did not have the the the the power power to to to to to to to instruct instruct the the the the Special Investigating Unit or or or or or Auditor-General to to to to to to to investigate on on on on her behalf The The The Court confirmed that the the the the the the the Public Public Public Protector’s view was inaccurate The The Public Public Public Protector Protector Protector has the the the the the the the legal power power to to to to to to to to to instruct instruct the the the the the the the Special Investigating Unit or or or or or or or or the the the the the the the Auditor-General to to to to to to to to to to investigate Section 6(4) (c) of the the the the the the the Public Public Public Public Protector Protector Protector Protector Act expressly empowers the the the the the the Public Public Protector Protector to to to to to to to to at at at at at at at at any time prior to to to to to to to to during or or or or or or or or after an an an investigation refer the the the the the the matter
to to to to to to to to the the appropriate appropriate public body or or or or or authority to to to to make an an an appropriate appropriate recommendation 6 6 2 6 6 Working with clients
LRC represented an an an an an an an institutional client the the the the Council for the the the the Advancement of the the the the South South African African Constitution Constitution (CASAC) CASAC CASAC is is is is a a a a a a a a a a a a a a a a a a a a a a a voluntary association established as as an an an an an an an an an initiative to advance the the the the the South South African African Constitution Constitution and and a a a a a a a a a a a a a a a a a a a a a a a platform for for for democratic politics and and and and the the transformation of of of society It is is is is is is comprised of of of progressive people from a a a a a a a a a a a a a a a a a a a a a a a a a a a a a range of of of of sectors and and and and and its advisory council and and and and and honorary members include senior advocates academics activists former former Justices of of the the the Constitutional Court and and and and and current and and and and and former former university vice-chancellors CASAC CASAC brought the the the application in in in in in in in its own interest interest and and and and in in in in in in in the the the the the the public interest interest Representing an an an an an an an institutional client such as as CASAC CASAC for for for this litigation litigation meant it it it it it it was instrumental to to the the the the the the the litigation litigation strategy and and had the the the the the the the capacity to to provide the the the the the the the reports reports which which were used as as as annexures in in in in the the the the the the the the court papers – such as as as the the the the the the the the reports reports by amaBhungane which which which detailed the the the the the the the the maladministration and and corruption which which marred the the the the the the Vrede Dairy Project LRC enjoys a a a a a a a a a a a a a a a a a a a a a a working relationship with CASAC and and the the the the the the executive secretary Lawson Naidoo ensured good news coverage of the the legal developments Our institutional client shares the the the commitment to to the the the many communities who may rely on on the the the the Public Protector to to to to vindicate their rights The judgment sends a a a a a a a a clear message to to to the the Public Protector that she must act independently and and impartially in in in in in fulfilling her her duties and and in in in in in instances where she she fails to do so she she will be held accountable This case was an an an example of how public interest strategic litigation can can have a a a a a a a a a a a a a a a wide impact not only on on on on the the the applicant in in the the the case but on on on on society more broadly Although this was was a a a a a a a a a a a particular report of the the the the Public Protector which was was being challenged the the impact of the the judgment extends beyond this report – it also means that that any other investigations that that are conducted by the the Public Protector on on on behalf of of of those who have suffered as a a a a a result of of of misuse of of of public power must must be be conducted thoroughly honestly and must must include all corrupt state employees The remedy prescribed in in the the the report must also be be one which is appropriate and fitting to the the the the subject matter
of of the the the the investigation The value of of this litigation is is that fit it it sets out the the the the standards against which the the the the Public Protector must be measured when investigating and and reporting and and therefore has the the the LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS
71