Are the Public Protector’s recommendations legally binding?

Genevieve Quintal, News24

Johannesburg – SABC chief operating officer Hlaudi Motsoeneng will challenge the Public Protector’s powers in a matter to be heard in the Supreme Court of Appeal in Bloemfontein on Friday.

His lawyer, Zola Majavu, said the heart of the matter was whether Public Protector Thuli Madonsela’s recommendations were binding.

“The issue that everyone is looking forward to hearing is a pronouncement on what is the status of the Public Protector,” Majavu told News24.

“That is what this fight is about, that is why it even went all the way to the SCA to give clarity on whether or not her recommendations enjoy any binding status or not.”

Communications Minister Faith Muthambi and the SABC were the other applicants in the matter.

Majavu said part of the argument was that the Western Cape High Court could not instruct the SABC to take disciplinary action against Motsoeneng when it had exonerated him after conducting its own internal investigation.

Matric certificate forged

Following an application by the Democratic Alliance, the high court ruled that Motsoeneng should be suspended for 60 days, pending the outcome of a disciplinary hearing, as Madonsela had instructed.

Judge Ashton Schippers granted Motsoeneng leave to appeal, but ruled that the interim suspension should come into effect immediately.

Madonsela’s report recommended action against him for receiving exorbitant salary increases and forging his matric certificate. Motsoeneng however stayed in his job.

The outcome of the SCA challenge could affect other recommendations Madonsela has made, including those related to the spending on President Jacob Zuma’s Nkandla home.

In its heads of argument, the SABC said it accepted that organs of state could not ignore the Public Protector’s findings and remedial action. There was, however, nothing in the Constitution stating that her decisions were binding, the broadcaster said.

“To find that the words used in section 182(1)(c) of the Constitution have the latter meaning would cross the divide between interpretation and legislating, and offend separation of powers,” the SABC said.

In its heads of argument, the DA argued that its initial application was not “frivolous litigation”.

“It is a serious attempt to address a serious public wrong.”

Majavu said he expected arguments in the SCA to conclude on Friday.

Motsoeneng would attend the proceedings in Bloemfontein.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s