Unless the Public Protector’s orders have binding effect‚ “she can establish state misconduct but cannot provide a remedy for it”.
That’s the gist of the application launched in the North Gauteng High Court on Monday by the Council for the Advancement of the South African Constitution (Casac) with regards Thuli Madonsela’s report on President’s Jacob Nkandla residence.
The first of the orders Casac is seeking is that “the Public Protector may make binding orders on organs of state”.
In Casac’s founding affidavit‚ executive secretary Lawson Naidoo said: “Unless her remedial orders are binding on the organs of state to which they relate‚ the power conferred on the Public Protector to take action is ineffective.
“She cannot exercise that power for the purpose for which it was conferred – namely‚ to protect the public against abuse of power by the state – if her orders do not have binding effect.
“Unless her orders have binding effect‚ she can establish state misconduct but cannot provide a remedy for it.
“Mere recommendation renders the Public Protector ineffective against state misconduct… the constitutional purpose is subverted if it is some other state institution or functionary – and in practice often the implicated organ of state itself – who decides what remedy‚ if any‚ to implement.”
Casac has also argued that “parts of the Public Protector Act of 1994 are unconstitutional with respect to being inconsistent with section 182 (1) (c ) of the Constitution”.
Casac is also asking the court order “the remedial action in paragraph 11 of the report are binding on the president”‚ and that the Police Minister’s report “seeking to exonerate the president for liability for costs of the non-security upgrades at Nkandla is set aside”.
Casac said its “application aims to ensure that there is proper accountability from the president for the upgrades at his private residence‚ as well as clarifying the powers of the Public Protector”.
“Whilst the gross extravagance of the expenditure at Nkandla is a cause for serious concern and redress‚ the powers of the Public Protector must be clarified to ensure that there is an effective bulwark against the abuse of public power and maladministration.”
Make Public Protector’s orders binding
Unless the Public Protector’s orders have binding effect‚ “she can establish state misconduct but cannot provide a remedy for it”.
That’s the gist of the application launched in the North Gauteng High Court on Monday by the Council for the Advancement of the South African Constitution (Casac) with regards Thuli Madonsela’s report on President’s Jacob Nkandla residence.
The first of the orders Casac is seeking is that “the Public Protector may make binding orders on organs of state”.
In Casac’s founding affidavit‚ executive secretary Lawson Naidoo said: “Unless her remedial orders are binding on the organs of state to which they relate‚ the power conferred on the Public Protector to take action is ineffective.
“She cannot exercise that power for the purpose for which it was conferred – namely‚ to protect the public against abuse of power by the state – if her orders do not have binding effect.
“Unless her orders have binding effect‚ she can establish state misconduct but cannot provide a remedy for it.
“Mere recommendation renders the Public Protector ineffective against state misconduct… the constitutional purpose is subverted if it is some other state institution or functionary – and in practice often the implicated organ of state itself – who decides what remedy‚ if any‚ to implement.”
Casac has also argued that “parts of the Public Protector Act of 1994 are unconstitutional with respect to being inconsistent with section 182 (1) (c ) of the Constitution”.
Casac is also asking the court order “the remedial action in paragraph 11 of the report are binding on the president”‚ and that the Police Minister’s report “seeking to exonerate the president for liability for costs of the non-security upgrades at Nkandla is set aside”.
Casac said its “application aims to ensure that there is proper accountability from the president for the upgrades at his private residence‚ as well as clarifying the powers of the Public Protector”.
“Whilst the gross extravagance of the expenditure at Nkandla is a cause for serious concern and redress‚ the powers of the Public Protector must be clarified to ensure that there is an effective bulwark against the abuse of public power and maladministration.”
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