To provide for matters incidental to the office of the Public Protector as contemplated in the Constitution of the Republic of South Africa, 1996; and to provide for matters connected therewith.
[Long title substituted by s. 1 of Act 113 of 1998.
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:[Preamble substituted by s. 2 of Act 113 of 1998.
[Definition of 'committee' substituted by s. 1 (a) of Act 22 of 2003.
'Constitution' means the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996); [Definition of 'Constitution' inserted by s. 3 (a) of Act 113 of 1998.
'Deputy Public Protector' means any person appointed as such in terms of section 2A (1); [Definition of 'Deputy Public Protector' substituted by s. 1 (b) of Act 22 of 2003.
'investigation' means an investigation referred to in section 7, including any preliminary investigation related thereto; [Definition of 'investigation' substituted by s. 3 (b) of Act 113 of 1998.
'joint committee' [Definition of 'joint committee' deleted by s. 3 (c) of Act 113 of 1998.
[Definition of 'member of the office of the Public Protector' substituted by s. 1 (c) of Act 22 of 2003.
'Minister' means the Cabinet member responsible for the administration of justice; [Definition of 'Minister' inserted by s. 3 (d) of Act 113 of 1998 and substituted by s. 1 (d) of Act 22 of 2003.
'new Constitution' [Definition of 'new Constitution' deleted by s. 3 (e) of Act 113 of 1998.
'Provincial Public Protector' [Definition of 'Provincial Public Protector' deleted by s. 3 (f) of Act 113 of 1998.
'Public Protector' means any person appointed as such in terms of section 1A. [Definition of 'Public Protector' substituted by s. 3 (g) of Act 113 of 1998.
'Public Service Commission' [Definition of 'Public Service Commission' deleted by s. 35 (1) of Act 47 of 1997.
There shall be a Public Protector for the Republic.
The President shall, whenever it becomes necessary, appoint a Public Protector in accordance with the provisions of section 193 of the Constitution.
has acquired any combination of experience mentioned in paragraphs (b) to (e) , for a cumulative period of at least 10 years.
[Sub-s. (3) substituted by s. 2 of Act 22 of 2003.
The Public Protector shall not perform remunerative work outside his or her official duties. [Section 1A inserted by s. 4 of Act 113 of 1998.
consideration of any other matter that can be referred to such a committee in terms of the Constitution or this Act.
[Sub-s. (1) substituted by s. 5 (a) of Act 113 of 1998 and by s. 3 (b) of Act 22 of 2003.
shall not be reduced, nor shall the terms and conditions of employment be adversely altered, during his or her term of office.
[Sub-s. (2) substituted by s. 5 (b) of Act 113 of 1998.
at his or her request: Provided that such request shall be addressed to the National Assembly or the committee, as the case may be, at least three calendar months prior to the date on which he or she wishes to vacate such office, unless the National Assembly or the committee, as the case may be, allows a shorter period in a specific case.
[Sub-s. (3) substituted by s. 5 (c) of Act 113 of 1998.
If the committee allows a Public Protector to vacate his or her office in terms of subsection (3), the chairperson of the committee shall communicate that fact by message to the National Assembly: Provided that any decision taken by the committee in terms of this subsection must be ratified by the National Assembly.
[Sub-s. (4) substituted by s. 5 (d) of Act 113 of 1998.
The Public Protector may, at any time, approach the committee with regard to any matter pertaining to the office of the Public Protector. [Sub-s. (5) substituted by s. 5 (e) of Act 113 of 1998.
[S. 2 amended by s. 3 (a) of Act 22 of 2003.
The President, on the recommendation of the National Assembly, shall appoint a person as Deputy Public Protector for such period as the President may determine at the time of such appointment, but not exceeding seven years.
The Deputy Public Protector may at the end of his or her term of office be reappointed in terms of subsection (1) for one additional term.
to (d) , for a cumulative period of at least 10 years.
The remuneration and other terms and conditions of employment of the Deputy Public Protector shall from time to time be determined by the National Assembly upon the advice of the committee.
The Deputy Public Protector shall have such powers as the Public Protector may delegate to him or her.
Whenever the Public Protector is, for any reason, unable to perform the functions of his or her office, or while the appointment of a person to the office of Public Protector is pending, the Deputy Public Protector shall perform such functions.
The provisions of section 2 (3) and (4) shall apply with the necessary changes in respect of the vacation of office of the Deputy Public Protector.
approved by the National Assembly by a resolution adopted with a supporting vote of a majority of the members of the National Assembly.
the adoption by the National Assembly of a resolution calling for his or her removal from office.
A resolution of the National Assembly concerning the removal from office of the Deputy Public Protector must be adopted with a supporting vote of a majority of the members of the National Assembly.
The President may suspend the Deputy Public Protector from office at any time after any complaint relating to the grounds referred to in subsection (9) against him or her has been received by the National Assembly, if the President deems the complaint against the Deputy Public Protector to be of such a serious nature as to make it inappropriate for him or her to perform his or her functions while the complaint is being investigated.
The President may suspend the Deputy Public Protector in terms of paragraph (a) on such terms and conditions as the President may determine, including the suspension of the payment of his or her remuneration or the suspension of any other term or condition of his or her employment.
The President shall remove the Deputy Public Protector from office upon adoption by the National Assembly of the resolution calling for his or her removal.
If a vacancy occurs in the office of the Deputy Public Protector the President shall, subject to this section, as soon as possible, appoint another person to that office.
[S. 2A inserted by s. 4 of Act 22 of 2003.
[Para. (a) substituted by s. 5 (b) of Act 22 of 2003.
such staff, seconded in terms of subsection (12) or appointed by the Public Protector, as may be necessary to enable the Public Protector to perform his or her functions.
[Sub-s. (2) substituted by s. 6 (a) of Act 113 of 1998 and deleted by s. 5 (c) of Act 22 of 2003.
Protector may delegate to him or her. [Sub-s. (3) substituted by s. 6 (b) of Act 113 of 1998 and by s. 5 (d) of Act 22 of 2003.
[Sub-s. (4) deleted by s. 5 (e) of Act 22 of 2003.
[Sub-s. (5) substituted by s. 6 (c) of Act 113 of 1998 and deleted by s. 5 (e) of Act 22 of 2003.
and (7) [Sub-ss. (6) and (7) deleted by s. 6 (d) of Act 113 of 1998.
[Sub-s. (8) substituted by s. 6 (e) of Act 113 of 1998 and deleted by s. 5 (e) of Act 22 of 2003.
The persons appointed by the Public Protector in terms of subsection (1) (b) or (c) shall receive such remuneration, allowances and other employment benefits and shall be appointed on such terms and conditions and for such periods, as the Public Protector may determine.
In exercising his or her powers in terms of subsections (1) and (9), the Public Protector shall consult with the Minister of Finance.
[Sub-s. (10) substituted by s. 35 (1) of Act 47 of 1997 and by s. 6 (f) of Act 113 of 1998.
A document setting out the remuneration, allowances and other conditions of employment determined by the Public Protector in terms of this section, shall be tabled in the National Assembly within 14 days after such determination.
[Para. (a) substituted by s. 6 (g) of Act 113 of 1998 and by s. 5 (f) of Act 22 of 2003.
If the National Assembly disapproves of any determination such determination shall cease to be of force to the extent to which it is so disapproved. [Para. (b) substituted by s. 6 (g) of Act 113 of 1998.
any right, privilege, obligation or liability acquired, accrued or incurred up to the said date under and by virtue of such determination, shall lapse upon the said date.
The Public Protector may, in the performance of the functions contemplated in subsection (1) (b) , at his or her request, be assisted by officers in the Public Service seconded to the service of the Public Protector in terms of any law regulating such secondment.
[Sub-s. (12) substituted by s. 35 (1) of Act 47 of 1997 and by s. 6 (h) of Act 113 of 1998.
(b) shall be exempted from the provisions of this paragraph.
[Para. (b) substituted by s. 5 (g) of Act 22 of 2003.
No person, other than a person contemplated in section 7 (3), shall conduct an investigation contemplated in section 7 or render assistance with regard thereto in respect of a matter in which he or she has any pecuniary interest or any other interest which might preclude him or her from performing his or her functions in a fair, unbiased and proper manner.
If any person fails to disclose an interest contemplated in subsection (14) and conducts or renders assistance with regard to an investigation contemplated in section 7, while having an interest in the matter being investigated, the Public Protector may take such steps as he or she deems necessary to ensure a fair, unbiased and proper investigation.
[S. 3 amended by s. 5 (a) of Act 22 of 2003.
[Para. (a) amended by s. 6 of Act 22 of 2003.
may exercise such powers and shall perform such duties as the Public Protector may from time to time confer upon or assign to him or her, and shall in respect thereof be accountable to the Public Protector.
The records referred to in subsection (1) (a) (ii) shall be audited by the Auditor-General.
The office of the Public Protector shall be a juristic person.
The State Liability Act, 1957 (Act 20 of 1957), shall apply with the necessary changes in respect of the office of the Public Protector, and in such application a reference in that Act to 'the Minister of the department concerned' shall be construed as a reference to the Public Protector in his or her official capacity.
[Sub-s. (2) substituted by s. 7 of Act 113 of 1998.
Neither a member of the office of the Public Protector nor the office of the Public Protector shall be liable in respect of anything reflected in any report, finding, point of view or recommendation made or expressed in good faith and submitted to Parliament or made known in terms of this Act or the Constitution.
by such other means as the Public Protector may allow with a view to making his or her office accessible to all persons.
A member of the office of the Public Protector shall render the necessary assistance, free of charge, to enable any person to comply with subsection (1).
prejudiced by conduct referred to in subsections (4) and (5) and has not taken all reasonable steps to exhaust his or her legal remedies in connection with such matter.
[Para. (b) substituted by s. 8 (a) of Act 113 of 1998.
[Sub-para. (iii) substituted by s. 36 (1) of Act 12 of 2004.
[Sub-para. (ii) amended s. 91 (a) of Act 2 of 2000.
any other means that may be expedient in the circumstances.
[Para. (d) added by s. 91 (b) of Act 2 of 2000.
[Sub-s. (4) substituted by s. 8 (b) of Act 113 of 1998.
[Para. (a) substituted by s. 7 of Act 22 of 2003.
act or omission by a person in the employ of an institution or entity contemplated in paragraph (a) , which results in unlawful or improper prejudice to any other person.
[Sub-s. (5) substituted by s. 8 (b) of Act 113 of 1998.
Protector to investigate the performance of judicial functions by any court of law. [Sub-s. (6) added by s. 8 (b) of Act 113 of 1998.
The Public Protector shall be competent to investigate, on his or her own initiative or on receipt of a complaint, any alleged attempt to do anything which he or she may investigate under subsections (4) or (5).
[Sub-s. (7) added by 8 (b) of Act 113 of 1998.
The Public Protector or any member of his or her staff shall be competent but not compellable to answer questions in any proceedings in or before a court of law or any body or institution established by or under any law, in connection with any information relating to the investigation which in the course of his or her investigation has come to his or her knowledge.
[Sub-s. (8) added by s. 8 (b) of Act 113 of 1998.
Except where the Public Protector in special circumstances, within his or her discretion, so permits, a complaint or matter referred to the Public Protector shall not be entertained unless it is reported to the Public Protector within two years from the occurrence of the incident or matter concerned.
[Sub-s. (9) added by s. 8 (b) of Act 113 of 1998.
of this Act, to conduct a preliminary investigation for the purpose of determining the merits of the complaint, allegation or information and the manner in which the matter concerned should be dealt with.
The format and the procedure to be followed in conducting any investigation shall be determined by the Public Protector with due regard to the circumstances of each case.
The Public Protector may direct that any category of persons or all persons whose presence is not desirable, shall not be present at any proceedings pertaining to any investigation or part thereof.
[Sub-s. (1) substituted by s. 9 (a) of Act 113 of 1998.
Notwithstanding anything to the contrary contained in any law no person shall disclose to any other person the contents of any document in the possession of a member of the office of the Public Protector or the record of any evidence given before the Public Protector, the Deputy Public Protector or a person contemplated in subsection (3) (b) during an investigation, unless the Public Protector determines otherwise.
[Sub-s. (2) substituted by s. 8 (a) of Act 22 of 2003.
otherwise subject to the jurisdiction of the Public Protector, to assist him or her, under his or her supervision and control, in the performance of his or her functions with regard to a particular investigation or investigations in general.
(i) The Public Protector may designate any person to conduct an investigation or any part thereof on his or her behalf and to report to him or her and for that purpose such a person shall have such powers as the Public Protector may delegate to him or her.
The provisions of section 9 and of the regulations and instructions issued by the Treasury under section 76 of the Public Finance Management Act, 1999 (Act 1 of 1999), in respect of Commissions of Inquiry, shall apply with the necessary changes in respect of that person.
[Sub-para. (ii) substituted by s. 8 (b) of Act 22 of 2003.
[Para. (b) substituted by s. 9 (b) of Act 113 of 1998.
For the purposes of conducting an investigation the Public Protector may direct any person to submit an affidavit or affirmed declaration or to appear before him or her to give evidence or to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated, and may examine such person.
The Public Protector or any person duly authorised thereto by him or her may request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on a matter being or to be investigated.
A direction referred to in subsection (4) (a) shall be by way of a subpoena containing particulars of the matter in connection with which the person subpoenaed is required to appear before the Public Protector and shall be signed by the Public Protector and served on the person subpoenaed either by a registered letter sent through the post or by delivery by a person authorised thereto by the Public Protector.
The Public Protector may require any person appearing as a witness before him or her under subsection (4) to give evidence on oath or after having made an affirmation.
The Public Protector or any person authorised by him or her in writing may administer an oath to or accept an affirmation from any such person.
[Sub-s. (7) substituted by s. 9 (c) of Act 113 of 1998.
Any person appearing before the Public Protector by virtue of the provisions of subsection (4) may be assisted at such examination by an advocate or an attorney and shall be entitled to peruse such of the documents or records referred to in subsection (2) as are reasonably necessary to refresh his or her memory.
If it appears to the Public Protector during the course of an investigation that any person is being implicated in the matter being investigated and that such implication may be to the detriment of that person or that an adverse finding pertaining to that person may result, the Public Protector shall afford such person an opportunity to respond in connection therewith, in any manner that may be expedient under the circumstances.
If such implication forms part of the evidence submitted to the Public Protector during an appearance in terms of the provisions of subsection (4), such person shall be afforded an opportunity to be heard in connection therewith by way of giving evidence.
Such person or his or her legal representative shall be entitled, through the Public Protector, to question other witnesses, determined by the Public Protector, who have appeared before the Public Protector in terms of this section.
[Sub-s. (9) substituted by s. 9 (d) of Act 113 of 1998.
The provisions of this section shall be applicable to any person referred to in subsection (9).
The Public Protector may make rules in respect of any matter referred to in this section which has a bearing on an investigation or in respect of any matter incidental thereto, provided that such rules must be published in the Government Gazette and tabled in the National Assembly.
[Sub-s. (11) added by s. 9 (e) of Act 113 of 1998.
The Public Protector shall be competent to enter, or authorise another person to enter, any building or premises and there to make such investigation or inquiry as he or she may deem necessary, and to seize anything on those premises which in his or her opinion has a bearing on the investigation.
The premises referred to in subsection (1) may only be entered by virtue of a warrant issued by a magistrate or a judge of the area of jurisdiction within which the premises is situated: Provided that such a warrant may be issued by a judge in respect of premises situated in another area of jurisdiction, if he or she deems it justified.
the need, in regard to the investigation, for a search and seizure in terms of this section, that there are reasonable grounds for believing that anything referred to in subsection (1) is on or in such premises or suspected to be on or in such premises.
the expiry of three months from the day of its issue, whichever may occur first.
Any person who acts on authority of a warrant issued in terms of this section may use such force as may be reasonably necessary to overcome any resistance against the entry and search of the premises, including the breaking of any door or window of such premises: Provided that such person shall first audibly demand admission to the premises and state the purpose for which he or she seeks to enter such premises.
The proviso to paragraph (a) shall not apply where the person concerned is on reasonable grounds of the opinion that any object, book or document which is the subject of the search may be destroyed, tampered with or disposed of if the provisions of the said proviso are first complied with.
A warrant issued in terms of this section shall be executed by day unless the person who issues the warrant authorises the execution thereof by night at times which shall be reasonable in the circumstances.
supply such person at his or her request with particulars regarding his or her authority to execute such a warrant.
If during the execution of a warrant or the conducting of a search in terms of this section, a person claims that any item found on or in the premises concerned contains privileged information and for that reason refuses the inspection or removal of such item, the person executing the warrant or conducting the search shall, if he or she is of the opinion that the item contains information which is relevant to the investigation or inquiry and that such information is necessary for the investigation or inquiry, request the registrar of the High Court which has jurisdiction or his or her delegate, to seize and remove that item for safe custody until a court of law has made a ruling on the question whether the information concerned is privileged or not.
[S. 7A inserted by s. 10 of Act 113 of 1998.
The Public Protector may, subject to the provisions of subsection (3), in the manner he or she deems fit, make known to any person any finding, point of view or recommendation in respect of a matter investigated by him or her.
The Public Protector shall report in writing on the activities of his or her office to the National Assembly at least once every year: Provided that any report shall also be tabled in the National Council of Provinces.
he or she is requested to do so by the Chairperson of the National Council of Provinces.
[Sub-s. (2) substituted by s. 11 (a) of Act 113 of 1998.
(a) Any report issued by the Public Protector shall be open to the public, unless the Public Protector is of the opinion that exceptional circumstances require that the report be kept confidential.
If the Public Protector is of the opinion that exceptional circumstances require that a report be kept confidential, the committee must be furnished with the reasons therefor and, if the committee concurs, such report shall be dealt with as a confidential document in terms of the rules of Parliament.
in the opinion of the Public Protector to have a bearing on the effective functioning of his or her office.
[Sub-s. (2A) inserted by s. 11 (b) of Act 113 of 1998.
The findings of an investigation by the Public Protector shall, when he or she deems it fit but as soon as possible, be made available to the complainant and to any person implicated thereby.
[Para. (a) substituted by s. 9 of Act 22 of 2003.
in connection with an investigation do anything which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court.
Nothing contained in this Act shall prohibit the discussion in Parliament of a matter being investigated or which has been investigated in terms of this Act by the Public Protector.
The Public Protector may, with the specific or general approval of the Minister of Finance or any person authorised by the said Minister to so approve, order that the expenses or a portion of the expenses incurred by any person in the course of or in connection with an investigation by the Public Protector, be paid from State funds to that person.
Any person who contravenes the provisions of sections 3 (14), 7 (2) and 9 of this Act, or interferes with the functioning of the office of the Public Protector as contemplated in section 181 (4) of the Constitution, shall be guilty of an offence.
[Sub-s. (1) substituted by s. 12 (a) of Act 113 of 1998.
Any person who fails to disclose an interest contemplated in section 3 (14), shall be guilty of an offence.
Any person who, without just cause, refuses or fails to comply with a direction or request under section 7 (4) or refuses to answer any question put to him or her under that section or gives to such question an answer which to his or her knowledge is false, or refuses to take the oath or to make an affirmation at the request of the Public Protector in terms of section 7 (6), shall be guilty of an offence.
[Sub-s. (3) substituted by s. 12 (b) of Act 113 of 1998.
Any person convicted of an offence in terms of this Act shall be liable to a fine not exceeding R40 000 or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment.
[S. 12 repealed by s. 13 of Act 113 of 1998.
The provisions of this Act shall not affect any investigation under, or the performance or exercise of any duty or power imposed or conferred by or under, any law.
The Ombudsman Act, 1979 (Act 118 of 1979), the Advocate-General Amendment Act, 1983 (Act 55 of 1983), and the Advocate-General Amendment Act, 1991 (Act 104 of 1991), are hereby repealed.
This Act shall be called the Public Protector Act, 1994.
To amend the Public Protector Act, 1994, so as to bring it into line with the Constitution of the Republic of South Africa, 1996; and to provide for matters connected therewith.
1 Substitutes the long title of the Public Protector Act 23 of 1994.
2 Substitutes the Preamble of the Public Protector Act 23 of 1994.
inserts the definition of 'Constitution'; paragraph (b) substitutes the definition of 'investigation'; paragraph (c) deletes the definition of 'joint committee'; paragraph (d) inserts the definition of 'Minister'; paragraph (e) deletes the definition of 'new Constitution'; paragraph (f) deletes the definition of 'Provincial Public Protector'; and paragraph (g) substitutes the definition of 'Public Protector'.
4 Inserts section 1A in the Public Protector Act 23 of 1994.
5 Amends section 2 of the Public Protector Act 23 of 1994 , as follows: paragraph (a) substitutes subsection (1); paragraph (b) substitutes subsection (2); paragraph (c) substitutes subsection (3); paragraph (d) substitutes subsection (4); and paragraph (e) substitutes subsection (5).
6 Amends section 3 of the Public Protector Act 23 of 1994 , as follows: paragraph (a) substitutes subsection (2); paragraph (b) substitutes subsection (3); paragraph (c) substitutes subsection (5); paragraph (d) deletes subsections (6) and (7); paragraph (e) substitutes subsection (8); paragraph (f) substitutes subsection (10); paragraph (g) substitutes subsection 11 (a) and (b) ; and subsection (h) substitutes subsection (12).
7 Amends section 5 of the Public Protector Act 23 of 1994 by substituting subsection (2).
8 Amends section 6 of the Public Protector Act 23 of 1994 , as follows: paragraph (a) substitutes subsection (3) (b) ; and paragraph (b) substitutes subsections (4), (5), (6), (7), (8) and (9) for subsections (4) and (5).
9 Amends section 7 of the Public Protector Act 23 of 1994 , as follows: paragraph (a) substitutes subsection (1); paragraph (b) substitutes subsection (3) (b) ; paragraph (c) substitutes subsection (7); paragraph (d) substitutes subsection (9); and paragraph (e) adds subsection (11).
10 Inserts section 7A in the Public Protector Act 23 of 1994.
11 Amends section 8 of the Public Protector Act 23 of 1994 , as follows: paragraph (a) substitutes subsection (2); and paragraph (b) inserts subsection (2A).
13 Repeals section 12 of the Public Protector Act 23 of 1994.
This Act shall be called the Public Protector Amendment Act, 1998.
To amend the Public Protector Act, 1994, so as to update certain obsolete provisions; to further regulate the appointment of the Public Protector and the Deputy Public Protector; and to provide for matters connected therewith.
1 Amends section 1 of the Public Protector Act 23 of 1994 , as follows: paragraph (a) substitutes the definition of 'committee'; paragraph (b) substitutes the definition of 'Deputy Public Protector'; paragraph (c) substitutes the definition of 'member of the office of the Public Protector'; and paragraph (d) substitutes the definition of 'Minister'.
2 Amends section 1A of the Public Protector Act 23 of 1994 by substituting subsection (3).
3 Amends section 2 of the Public Protector Act 23 of 1994 , as follows: paragraph (a) substitutes the heading; and paragraph (b) substitutes subsection (1).
4 Inserts section 2A in the Public Protector Act 23 of 1994.
5 Amends section 3 of the Public Protector Act 23 of 1994 , as follows: paragraph (a) substitutes the heading; paragraph (b) substitutes subsection (1) (a) ; paragraph (c) deletes subsection (2); paragraph (d) substitutes subsection (3); paragraph (e) deletes subsections (4), (5) and (8); paragraph (f) substitutes subsection (11) (a) ; and paragraph (g) substitutes subsection (13) (b).
6 Amends section 4 (1) (a) of the Public Protector Act 23 of 1994 by substituting the words preceding subparagraph (i).
7 Amends section 6 (5) of the Public Protector Act 23 of 1994 by substituting paragraph (a).
8 Amends section 7 of the Public Protector Act 23 of 1994 , as follows: paragraph (a) substitutes subsection (2); and paragraph (b) substitutes subsection (3) (b) (ii).
9 Amends section 9 (1) of the Public Protector Act 23 of 1994 by substituting paragraph (a).
This Act is called the Public Protector Amendment Act, 2003.