Clear all along that public protector did not have power to instruct parliament: expert

It was clear to any legal mind before the pronouncement by the court that the Public Protector did not have a power to instruct Parliament to amend the Constitution.

Constitutional law expert Prof Pierre de Vos said this following a judgment by the high court in Pretoria on Tuesday‚ which set aside a remedial action by the Public Protector.

The Public Protector‚ in a report in June on the Bankorp/Absa lifeboat in the 1990s‚ instructed the chairman of the portfolio committee on justice‚ Dr Mathole Motshekga‚ to initiate a process that will result in the amendment of the Constitution to change the mandate of the Reserve Bank.

The Reserve Bank‚ Absa‚ the Speaker of the National Assembly and Motshekga took that remedial action on review.

Public Protector Busisiwe Mkhwebane did not oppose the application by the Reserve Bank.

However‚ the court had ruled in another case that the remedial action by the Public Protector remains binding until set aside by the court.

Judge John Murphy set aside the remedial action‚ finding that it was irrational because it was not rationally connected to the evidence and information before the Public Protector.

De Vos said the judgment showed that the Public Protector overstepped her powers in instructing Parliament to amend the Constitution.

“It also did not make any sense for the Public Protector to make remedial action of changing the Reserve Bank’s mandate‚ and which had nothing to do with what was being investigated‚” De Vos said.

The Public Protector was still studying the report on Tuesday afternoon and was not in a position to comment‚ her spokeswoman‚ Cleopatra Mosana‚ said.

Motshekga welcomed the judgment and said it provided clarity on the separation of powers.

“The committee firmly agrees with the court decision that the remedial action of the Public Protector in this regard moved onto a terrain that is solely for Parliament to decide on. The Committee welcomes the decision‚ as it is not just in favour of the SARB‚ but also in favour of Parliament‚ as it speaks to the separation of powers.”

In his judgment‚ Murphy said the Public Protector would do well to reflect on her conduct in the investigation.

Murphy said the remedial action by the Public Protector violated the separation of powers guaranteed in the Constitution.

“The Public Protector’s order (encroaches) unconstitutionally and irrationally on Parliament’s exclusive authority‚” Murphy said.