ANALYSIS: A few constitutional (and other) lessons for the Public Protector

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ANALYSIS: A few constitutional (and other) lessons for the Public Protector By Marianne Merten marianne_merten

accepted her explanation that “she had not meant to instruct Parliament to amend the Constitution, but merely recommending that [it] should be given the necessary attention. The committee is of the opinion that this flawed action should not overshadow attempts to investigate the role of the Reserve Bank in the reduction of poverty in South Africa”.

Politically, the DA and EFF and any other political party missed the boat in 2017 to complain about the failure of the then still deputy president and MP Ramaphosa to declare donations for his campaign as ANC party president. And no one complained to the joint ethics committee about Nkosazana Dlamini Zuma, who was sworn in as MP in September 2017 and made a declaration in the 2017 Register of Members’ Interests.

Parliamentarians must declare to the national legislature. As ministers, their deputies and the deputy president are also MPs, they declare twice: once to Parliament, which is readily accessible on the parliamentary website, and then in the Union Buildings, where access to declarations is more tricky, requiring an appointment for a physical visit. The president declares once – at the Union Buildings.

Enter at this stage the political party concerned: as a voluntary association, the party has a say on how it runs its business, including how candidates for internal party office fund their campaigns. At the recent public hearings on the Political Party Funding Act regulations, the ANC told the Electoral Commission of South Africa , the governing party’s national general council pencilled in for mid-2020 would look at regulating money for internal elections.

Much of Mkhwebane’s letter hinges on Section 181 of the Constitution that says: “Other organs of state, through legislation and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions”. It’s a reference to all Chapter 9 institutions established to support constitutional democracy, including the IEC, auditor-general and South African Human Rights Commission.

to the personal cost order related to the Absa Bankorp matter. On 22 July a majority judgement ruled against her.And so it is with the National Prosecuting Authority , whose boss, advocate Shamila Batohi, wrote to Mkhwebane, very politely by all accounts, over the misunderstanding about the “independent mandates about our respective offices”. The prosecuting authority is also a constitutional entity established in Chapter 8 of the Constitution in Section 179.

 

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