The public protector wants to criminalise the non-implementation of the office’s remedial actions.
This is one of the legislative reforms the office wants to see when the Protected Disclosures Act is amended.
Public protector Kholeka Gcaleka, who assumed office permanently this month, told the Cape Town Press Club the reforms were necessary for the work of the office to be more effective.
She revealed that an analysis done by the office showed that by January this year, only 2% of the remedial actions made by the public protector since March 2016 had been implemented. That is when the Constitutional Court ruled in the Nkandla matter that the public protector’s remedial actions were binding.
Gcaleka said the implementation rate had risen to 18% by November, thanks to her office engaging the affected departments and institutions on the matter.
“The courts and the constitution are clear that we are not merely making recommendations but taking remedial actions and that they should be implemented. If you feel that for some legal reason, they can’t be implemented, a review should be taken to a court,” she said.
“We’ve seen that happening, and truth be told, we’ve seen that that is where our actual impact is as an institution, it’s the remedial action that we take and we must see it being implemented.”
The act already deals with the contempt of the public protector, including not complying with a subpoena or insulting the public protector.
The office wants this to be expanded to include the noncompliance with the remedial action on the circumstances where an institution has received the final report, the period given to comply with remedial action has lapsed and they have not filed a review application to interdict the remedial action.
Remedial action has to be interdicted and then the court asked to set the remedial action aside.
Gcaleka said in the International Monetary Fund’s statement on South Africa, the country was found “a little bit wanting” when it came to the implementation of governance reforms.
“Most of the remedial actions that we take as the public protector are actually governance reforms that should be implemented and they are not being implemented.”
The PPSA also wants the law to make a distinction between the public protector as an institution and the person who leads the institution because as things stand “public protector” refers to both.
This is to address issues including when there are cost orders and will specify who would be responsible for that between the incumbent and the institution.
She said this was critical for the PPSA to take lessons from the mistakes it has made as the institution.
“We had to look at the reality that we face as the institution because of the lack of distinction between the public protector as the person occupying the position as well as the public protector as the institution.
“It’s critical that we make that distinction so that we do not find ourselves making a mistake where I think I am the institution.”
The act says the public protector will be assisted by the deputy public protector, the CEO and staff.
“What makes up the institution is the public protector, the deputy, the CEO and the staff. Those are the people who conduct the investigations and the act is clear that they will assist the public protector in conducting investigations.
“The public protector merely directs and controls the process but doesn’t do the actual day-to-day investigations, so it’s critical that that is particularly realised.”
Gcaleka also wants the public protector to be given more powers when it comes to dealing with whistle-blowers.
She said the Protected Disclosures Act gives them only the power to investigate protected disclosures, but that is not sufficient.
“We don’t have the power to protect or to call for the protection or to direct or call for legal assistance for whistle-blowers, a major issue with whistle-blowers. We believe the Public Protector Act should be truly reflective of the conditions that whistle-blowers are going through in our country and we should have the power to provide some remedy in that respect.”
Gcaleka said the proposed reforms have already been submitted to the department of justice, which is charged with taking them to parliament for processing.
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