An Analysis of the Public Protector's Investigatory and Decision-Making Procedural Powers

Abstract

This article critically analyses the Draft Rules to the Public Protector Act 23 of 1994 and examines the efficacy of the Public Protector's decision-making procedural powers. Several procedural lacunae are identified. In particular the article evaluates the procedural distinction between an investigation and a hearing as defined in the Draft Rules and the Act. It is unclear from a reading of the Draft Rules whether a hearing is simply part of the Public Protector's investigatory process or whether it functions as a separate quasi-judicial decision-making process in its own right. A significant lacuna is the failure to specify the procedural protections available to an implicated person or a witness in an investigation or a hearing. A primary problem with the Draft Rules is the very broad procedural powers awarded to the Public Protector, which are open to procedural abuse. The article suggests a number of amendments to the Draft Rules, which should be modelled on the procedural methodology applied in the Special Investigating Units and Special Tribunals Act 74 of 1996. Moreover, the article suggests that the decision-making powers of the Public Protector should be divided between the Public Protector and an independent and temporarily appointed adjudicator.