The Public Protector, otherwise referred to as a Public Defender or Watchdog, plays an integral part in strengthening the constitutional democracy of South Africa. Not all countries have the office of a Public Protector. The idea of a Public Protector originated in Sweden and was adopted by the Scandinavian countries in the 20th century. The first public protector was referred to as an ombudsman.
The Public Protector is an independent institution which is mandated to watch over the affairs of government, investigate complaints and suggest remedial action. In a country that has been ravaged by series of allegations ranging from corruption at the highest levels to a report issued by the previous public protector, Adv. Thuli Madonsela, confirming state capture. The office of the Public Protector and the services rendered by them has come in high demand.
The Public Protector has jurisdiction over all organs of state and its powers are far reaching. As long as the Public Protector acts in accordance with the Constitution and the law, the remedial action ordered by the Public Protector cannot be ignored and is legally binding.
The current Public Protector, Adv. Busisiwe Mkhwebane, has recently issued a report in terms of which she held that ABSA Bank was bailed out by the South African Reserve Bank (“SARB“) and she went on to prescribe changes to the mandate of the SARB. The SARB has applied to review the Public Protector’s report stating that the prescribed changes to the mandate of the SARB are “unlawful” and “falls outside of her powers”. While the SARB is an organ of state and it falls within the jurisdiction of the Public Protector, it is doubtful that the Public Protector has the power to recommend this type of remedial action.
While the aforementioned conduct could be interpreted as one instance where the Public Protector has purported to exceeded its powers, the office of the Public Protector remains one of the barriers to rampant corruption and widespread looting. Its independence should be protected to ensure the safeguarding of South Africa’s constitutional democracy.