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APPOINTMENT PROCESS: PUBLIC PROTECTOR 1 JUNE 2016

APPOINTMENT PROCESS: PUBLIC PROTECTOR 1 JUNE 2016. Ad Hoc Committee to nominate a person for appointment of Public Protector. INTRODUCTION.

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APPOINTMENT PROCESS: PUBLIC PROTECTOR 1 JUNE 2016

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  1. APPOINTMENT PROCESS: PUBLIC PROTECTOR 1 JUNE 2016

  2. Ad Hoc Committee to nominate a person for appointment of Public Protector • INTRODUCTION • This ad hoc Committee is established by the National Assembly to nominate a candidate for appointment as Public Protector when AdvThuliMadonsela’s term of office expires – 19 October 2016. • The Public Protector is a “Chapter 9” institutions, established in terms of the Constitution to act independently in supporting and strengthening constitutional democracy. • The rationale for establishing these institutions in our Constitution lies in the profound disrespect by the Apartheid government for the human rights of its citizens and its failure to honour even the most basic principles of the Rule of Law. The intention was that these independent institutions would assist to: • Restore the credibility of the state and its institutions; • Ensure that our Constitutional democracy flourished; • Ensure the successful establishment of and continued respect for the Rule of Law; and • Ensure that the state became more open and responsive to the needs of its citizens and more respectful of their rights.

  3. Ad Hoc Committee to nominate a person for appointment of Public Protector • INTRODUCTION • These institutions are subject only to the Constitution and the law and must be impartial, exercising their powers and performing their functions without fear, favour or prejudice. • Other organs of State must assist and protect their independence, impartiality, dignity and effectiveness, and no organ of State or person may interfere with their functioning. • In the case of the Public Protector, an Ombud with wide powers, could oversee the application of fundamental human rights in the administrative sphere

  4. Ad Hoc Committee to nominate a person for appointment of Public Protector 2. Constitutional mandate • The Public Protector is established to ensure government’s accountability and to provide remedies for maladministration and abuse of authority. To do this, the Public Protector is empowered to investigate, report on, and suggest remedial action for a wide range of wrongdoings in the public administration. • Section 182(1) of the Constitution provides as follows: • ‘The Public Protector has the power, as regulated by national legislation – • (a) To investigate conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in an impropriety or prejudice; • (b) To report on any conduct • (c) To take any appropriate remedial action.” • Section 182(2) provides that the Public Protector also has the additional powers and functions prescribed by national legislation.

  5. Ad Hoc Committee to nominate a person for appointment of Public Protector 2. Mandate and powers • Public Protector Act, 1994 and the Executive Members’ Ethics Act, 1998 are key: • The PP can appoint his/her staff. • Investigate on his/her own initiative or on complaint any alleged maladministration in connection with the affairs of government; abuse or unjustifiable exercise of power or unfair, discourteous or other improper conduct or undue delay; improper or unlawful enrichment or receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission; and any act or omission which results in improper prejudice.

  6. Ad Hoc Committee to nominate a person for appointment of Public Protector 2. Mandate and Powers • Direct (through a subpoena) any person during an investigation to submit an affidavit or affirmed declaration or produce any document in his or her possession • Resolve any dispute or rectify an act or omission by mediation, negotiation, conciliation or any other means. • At any time prior or during or after an investigation, if he or she is of the view that the facts disclose some form of criminal activity, bring the matter to the attention of the NPA. • Refer any matter to an appropriate public body or authority.

  7. Ad Hoc Committee to nominate a person for appointment of Public Protector 2. Mandate and powers • At any time prior to or during an investigation request assistance from any person at any level of government; performing a public function or otherwise subject to the jurisdiction of the PP • Enter any premises (through a warrant issued by a magistrate or judge) and seize anything which has a bearing on the investigation. • Report in writing on his/her activities to Parliament at least once a year. • At any time submit a report to the National Assembly in respect of any investigation: if the PP deems it necessary in the public interest; it requires the urgent attention of or intervention by the National Assembly; or is requested to do so by the Speaker of the National Assembly or Chairperson of the National Council of Provinces. These reports must be open to the public unless there are exceptional circumstances (for example if the publication is likely to endanger the security of South African citizens, prejudice an investigation or disturb the public order.)

  8. Ad Hoc Committee to nominate a person for appointment of Public Protector 2. Mandate and powers • The Executive Members’ Ethics Act, 1998 empowers the PP to investigate any complaint received from the President, a MP, Premier or MPL of an alleged breach of the code of ethics governing the conduct of Members of the Cabinet, Deputy Ministers and Members of Executive Councils of the provinces.

  9. Ad Hoc Committee to nominate a person for appointment of Public Protector 2. Mandate and powers • The PP is also empowered to • Investigate Corruption as mandated by section 6(4)(a)(iv) of the Public Protector Act read with the Prevention and Combating of Corrupt Activities Act 12 of 2004. • Receive and address protected disclosures from whistle blowers as mandated by the Protected Disclosures Act 26 of 2000. • Review decisions of the National Home Builders Registration Council (NHBRC) as mandated by the Housing Protection Measures Act 95 of 1998.

  10. Ad Hoc Committee to nominate a person for appointment of Public Protector 2. Mandate and powers • In addition, the following legislation either recognises the investigative powers of the PP or assigns the institution an administrative role. • Electoral Commission Act 51 of 1996. The PP must serve as a member of a panel that recommends a list of candidates to a National Assembly committee which nominates Electoral commissioners. •  National Archives and Record Services Act 43 of 1996. The PP must be consulted on investigations into the unauthorised destruction of records otherwise protected under this Act •  National Energy Act 40 of 2004. The protection of people from civil or criminal liability, dismissal, disciplinary action, prejudice or harassment who make disclosures of health and safety risks; or failure to comply with a duty imposed by this Act to the Public Protector. •  Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. The PP is recognised as an alternative forum to resolve equality disputes.

  11. Ad Hoc Committee to nominate a person for appointment of Public Protector 2. Mandate and powers •  Public Finance Management Act 1 of 1999. The Public Protector must receive a certificate from an accounting officer of an organ of state which has received donor funds or sponsorship anonymously. •  Lotteries Act 57 of 1997. The PP may receive confidential disclosures in respect of publishing any information in connection with a grant application. •  Special Investigating Units and Special Tribunals Act 74 of 1996. Provides for referral of cases between the Public Protector and the SIU. •  National Environmental Management Act 108 of 1999. Records and annual reports on environmental conflict management referred to in the Act includes proceedings by the PP.

  12. Ad Hoc Committee to nominate a person for appointment of Public Protector 3. PPSA – QUICK FACTS • The PP has a budget of R263 million for the 2016/17 financial year. • The current staff complement of the PP is 369 ( of which 146 are investigators and 39 assistant investigators). • Investigative and Appropriate Dispute Resolution (ADR) services are provided in 20 service centres.

  13. Ad Hoc Committee to nominate a person for appointment of Public Protector 3. PPSA – QUICK FACTS • In 2014/15, the PP – • Finalised 20 231 cases • Referred 2 740 cases to other institutions with advice • Reported that 39 per cent of matters involved undue delay; 29 per cent maladministration and 10 per cent unlawful or improper prejudice. • Upheld 49 percent of complaints • Resolved most complaints though (ADR) using conciliation, mediation or negotiation. • Published 19 formal reports • Conducted an own initiative investigation concerning the South African Social Security Agency • Acted as custodian of the African Ombudsman Research Centre (AORC) in Durban

  14. Ad Hoc Committee to nominate a person for appointment of Public Protector 4. Appointment process • The process to appoint a Public Protector is set out in section 193 of the Constitution: • The President appoints the Public Protector, whenever it becomes necessary for a non-renewable term of seven years, following the recommendation of the National Assembly. • The National Assembly initiates, referring the matter to a Committee of the Assembly. • The mandated Committee proportionally made up of all parties in the Assembly must nominate a candidate to the Assembly. • .

  15. Ad Hoc Committee to nominate a person for appointment of Public Protector 4. Appointment process • The National Assembly must approve the nomination by way of a resolution supported by at least 60 per cent of its members. • The involvement of civil society in the recommendation process may be provided for as envisaged in section 59(1) of the Constitution. Broadly, section 59(1) provides for public access to and involvement in the National Assembly. The provision states that the Assembly must facilitate public involvement in its legislative and other processes and conduct its business in an open manner and hold its business/ meetings in public. • .

  16. Ad Hoc Committee to nominate a person for appointment of Public Protector 3.2. Selection criteria • The criteria for appointment as the Public Protector are set out in section 193 of the Constitutionand section 1A of the Public Protector Act, 1994 • Section 193 of the Constitution provides that the Public Protector must be: • A South African citizen; • Fit and proper person to hold the particular office; and • Comply with any other requirements prescribed by national legislation.

  17. Ad Hoc Committee to nominate a person for appointment of Public Protector 5. Selection criteria • Section 1A(3) of the Public Protector Act provides that: • “The Public Protector shall be a South African citizen who is a fit and proper person to hold such office, and who- • (a) is a Judge of a High Court; or • (b) is admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having been so admitted, practised as an advocate or an attorney; or • (c) is qualified to be admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having so qualified, lectured in law at a university; or

  18. Ad Hoc Committee to nominate a person for appointment of Public Protector 5. Selection criteria • (d) has specialised knowledge of or experience, for a cumulative period of at least 10 years, in the administration of justice, public administration or public finance; or • (e) has, for a cumulative period of at least 10 years, been a member of Parliament; or • (f) has acquired any combination of experience mentioned in paragraphs (b) to (e), for a cumulative period of at least 10 years.”

  19. Ad Hoc Committee to nominate a person for appointment of Public Protector 6. Concluding remarks • To date, there have been 3 Public Protector’s appointed - • Adv. Selby Baqwa - in 1995, Adv Selby Baqwa (now a Judge of the North Gauteng High Court) was appointed by former President Nelson Mandela as the first Public Protector. He holds a Bjuris and LLB. • Adv Lawrence Mushwana was appointed in 2002 by former President Thabo Mbeki. He is now Chairperson of the SAHRC. Prior to this he was a MP of 8 year and holds an LLB. • AdvThuliMadonsela was appointed in 2009 by President Jacob Zuma. Before this she was a human rights and constitutional lawyer and served as a commissioner at the SA Law Reform Commission. She has a BA Law and an LLB.

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