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23 April 2014
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A reminder from the EAT: appealing against a well-reasoned tribunal decision is unlikely to be successful
8 July 2014
The introduction of a new ombudsman system in South Africa promises to offer justice for all. Mary Ruck reports. Mary Ruck is a barrister at 10 King's Bench Walk, the chambers of Ronald Thwaites QC, and is on secondment to the Office of the Public Protector, supported by the Inns of Court Pegasus Scholarship Trust.
Open government in South Africa was not a priority under the apartheid regime. Despite the existence of an independent ombudsman, the majority of the population suffered silently rather than challenging bad government.
Change under President Nelson Mandela has reflected a new desire to expose the authorities to analysis from the public. Since October 1995, the new Office of the Public Protector (OPP) has replaced the ombudsman.
The OPP's task is to investigate public maladministration at any level, from the President's office downwards. Its jurisdiction and aims are now enshrined in the constitution and statute and are underpinned by the new commitment to human rights spelt out in the constitution's Charter of Fundamental Rights.
Not surprisingly, there has been a surge of interest from people who are experiencing for the first time the chance to demand accountability from those in public office, with a real expectation of results.
The appointment of South Africa's first ever black Public Protector, Selby Baqwa, marked the beginning of a remarkable expansion of the office and the complaints referred to it. The OPP's staff comprises 12 legally trained investigators - of whom half are non-white, and one in three female - and 14 support staff. This compares with a total staff of nine in 1994, all of whom were white, bar the registration clerk.
As well as governmental maladministration, the Public Protector can investigate any abuse or unjustifiable exercise of power; unfair, capricious, discourteous or other improper conduct; or undue delay by a person performing a public function.
He can also investigate unlawful enrichment or the receipt of any improper advantage by a person as a result of an act or omission by a person performing a public function or which will result in unlawful or improper prejudice to any other person.
The popularity of the new office is self-evident. Requests for investigation and intervention by the Public Protector have risen three-fold with more than 2,000 complaints received so far in 1998.
The subject matter ranges from the trivial (a public servant complaining that he had to fly economy class when previously he had flown business class) to issues affecting hundreds of people and which have resulted in payments to those affected (the unfair levying of rate charges against residents of a Pretoria suburb).
The office has no enforcement powers like most of its international counterparts. It relies instead on government and public approval of its findings. Government, in particular, has shown a willingness to accept and implement recommendations.
The accessibility of the service to ordinary people is a sensitive issue. Kathleen de Heugh of the Pan African Language Board points out that, although regional structures exist for advertising the service, a poster in a magistrates court or a local government building will not help the illiterate. Although Afrikaans is the single most understood language in South Africa, English is increasingly the language of government. A complaint can be investigated in any of the 11 languages of South Africa, but there is no provision for the translation of advertising brochures into any language besides English.
However, the office's name change reflects an effort to redress the balance. The use of the term "ombudsman" was unsatisfactory in an African context and generally misunderstood: complaints were frequently addressed to "Mr Budsman" or "Omnibusman". Also, in a country now so sensitive to issues of equality, a title which could be construed as sexist was inappropriate, even though it is gender neutral.
The new title does, however, have its drawbacks. Baqwa has styled himself in the media as a "referee, rather than a player", yet complainants often expect the Public Protector to be a "people's advocate", and organisations at the sharp end of an investigation are suspicious of someone they initially perceive as partisan.
So what of the future? Despite some notable successes, criticism has been levelled at the office for its own "undue delay" - it takes an average of 8.4 months to resolve a complaint. While accepting that the delay is unacceptable, the backlog is inevitable given the popularity of the Public Protector.
In Baqwa's most recent briefing to parliament on 4 August, he made a plea for more resources. He recognises that the trust people have shown in him is precious and all too easily displaced. Since he relies on that goodwill to be effective, the fear of losing it is the one thing that could give him sleepless nights.