The implications of the Public Protector’s remedial action directing the exercise of discretionary constitutional powers: separation of powers implications

Abstract

This article considers the judgments of the North Gauteng High Court in which the remedial action of the Public Protector was reviewed. In President of the RSA v Public Protector, delivered in 2018, the Court upheld the remedial action directing the President to appoint a commission of inquiry without having regard to the separation of powers doctrine. The decision stands in contrast to an earlier decision (SARB v Public Protector) and a later decision (RSA v Public Protector) where the Court set aside the remedial action of the Public Protector that also purported to direct the exercise of discretionary constitutional powers. In these cases, the remedial action was set aside after proper regard was had to the separation of powers doctrine. This article therefore considers these diverging approaches where the court reviews the remedial action of the Public Protector directing the exercise of discretionary constitutional powers. It considers the effects of not consistently having regard to the separation of powers doctrine in reviewing the remedial action of the Public Protector. It is argued that the inconsistent invocation of this doctrine leads to legal uncertainty specifically in relation to the exercise of the President’s discretionary constitutional power as head of state to appoint a commission of inquiry. Furthermore, the article considers the effect the failure to review the Public Protector’s remedial action consistently from a separation of powers perspective may have on the Public Protector’s ability to adequately fulfil the mandate of strengthening constitutional democracy.