The status of the public protector within the governance framework in South Africa

Abstract

The Public Protector (PP) is a genus of the Ombudsman and its status within governance has been a controversial subject in the national discourse in South Africa. This institution was created in terms of Section 181 of the Constitution as part of the coterie of institutions mandated to protect and strengthen constitutional democracy. These institutions are colloquially called the Chapter 9 institutions. They have been described as not forming part of government, although they are an integral part of the governance system in South Africa. It has become necessary to study the status of one of these institutions, namely the PP, within the governance framework in South Africa. The governance framework consists of the institutions that form the trias politica, the co-operative government and the organs of state, as defined in Section 239 of the Constitution. This research has indicated that the PP, like all other Chapter 9 institutions, exists outside the trias politica and co-operative government framework, but it is an organ of state as defined in Section 239. As a result of this complex status of the PP within the governance framework, the researcher has defined its place as being part of co- operative governance, although it is not part of co-operative government, as defined in Chapter 3 of the Constitution. This characterisation of the status of the PP means that it is not part of the intergovernmental framework and it is not restricted by the legal and structural strictures of this framework, but it is required to co-operate with other organs of state to achieve its objectives of protecting and strengthening constitutional democracy and promoting good governance. This study has been a normative exercise, which places the PP within the trilogy of normative frameworks: the governance and Ombudsman theoretical frameworks; good governance as a normative function; and the normative values that inform the ethics of the PP as a genus of the Ombudsman. The study’s findings and recommendations seek to further elucidate and embed the status of the PP within the governance framework in South Africa. Therefore, it makes an original contribution to the interdisciplinary science of Governance and Political Transformation.